425

HUMPHREY v. TATMAN.

198 U. S. 91-95

receipts which takes precedence of title of trustee in bankruptcy; York Mfg. Co. v. Cassell, 201 U. S. 352, 50 L. Ed. 785, 26 Sup. Ct. 481, adjudication in bankruptcy does not operate in favor of bankruptcy trustee against conditional vendor of property sold to bankrupt because contract not filed as required by State statute; Sieg v. Greene, 225 Fed. 960, advancements by former partner to brick company under agreement to receive bricks manufactured creates equitable lien, and possession taken within four months of bankruptcy to enforce contract was not voidable preference; In re National Boat & Engine Co., 216 Fed. 215, holding unrecorded trust deed to claimant to secure him against contingent liability on indorsements for company was fraudulent and void, and was no basis for valid transfer of mortgage bonds; In re Marriner, 220 Fed. 544, under Maine statute mortgage made in good faith, but unrecorded for year, is valid after recording as against creditors extending credit to mortgagor prior to recording, but not acquiring lien by attachment or levy; In re Harvey, 212 Fed. 341, 342, under decisions of State court holding agreements to pledge personal property valid though delivery is not made until after agreement, except as to intervening lien creditors, delivery of property by debtor subsequent to agreement to give lien is not voidable preference; Hart v. Emmerson-Brantingham Co., 203 Fed. 62, where property is delivered to bankrupt under contract of conditional sale, not recorded, as required by State law, and seller takes back property within four months of bankruptcy, trustee cannot recover it as having rights of judgment creditor, nor as preference; In re Raney, 202 Fed. 998, under Texas statutes, contract of sale reserving lien on goods sold and on goods subsequently shipped until buyer's indebtedness is paid, is void as to goods in hands of bankrupt not purchased under particular contract reserving title; In re Harnden, 200 Fed. 177, 178, 180, under law of New Mexico as established by decisions mortgage on stock of goods, where mortgagor retains possession and sells goods without accounting for proceeds to mortgagee, is valid except as to creditors without notice becoming such between dates of execution and recording of mortgage; Swager v. Smith, 194 Fed. 764, 114 C. C. A. 482, deed of trust on personal property in hotel covering contents of pantry, wineroom, and bar supplies, which grantor covenanted to keep up to value of two thousand five hundred dollars, was void under law of West Virginia as against grantor's other creditors in bankruptcy; In re Schoenfield, 190 Fed. 61, holding receiver properly took possession of stock of goods remaining in bankrupt's possession and being disposed of by him, where recorded bill of sale to claimant did not comply with Bulk Sales Act; Debus v. Yates, 193 Fed. 445, 450, dismissing suit by trustee in bankruptcy to set aside transfer to creditor of lot worth fifteen hundred dollars as preference, where contract was made more than year prior to bankruptcy, but deed was executed within four months of bankruptcy; In re Hartdagen, 189 Fed. 548, contract between manu

facturer and dealer that latter is to hold goods in trust until purchase price is paid is contract of sale, void against creditors of dealer under Pennsylvania law, and void against trustee in bankruptcy under act of 1910; Reynolds v. New York Trust Co., 188 Fed. 615, 39 L. R. A. (N. S.) 391, 110 C. C. A. 409, in exercise of bankruptcy jurisdiction court may resort to principles of common law to determine whether implied contract arises to pay for goods converted, but trust company recovering judgment against joint tort-feasors cannot also recover against one of them severally, as liability of such person is not both joint and several; In re Wade, 185 Fed. 667, chattel mortgage in Missouri is void as to creditors becoming such between giving of mortgage and its recording, but as to creditors existing at date of mortgage and having no lien prior to bankruptcy mortgage is valid as to fixtures and so much of stock of goods as can be proved to be covered thereby; In re Hurley, 185 Fed. 853, 854, where chattel mortgage covering afteracquired property is invalid under local law except between parties, mortgagee not having taken possession before bankruptcy has no lien superior to rights of trustee; In re Bird, 180 Fed. 233, assignment of bankrupt's equity in pledged securities was valid under bankruptcy law of 1898 and under law of Minnesota without registration and took effect from date of delivery and notice to bank; In re Perlhefter, 177 Fed. 303, where bank agrees to finance purchase of shoes by bankrupt, proceeds of sales to be deposited without power of withdrawal until bank is paid, deposit of proceeds within four months of bankruptcy did not constitute preferences; In re Automobile Livery Service Co., 176 Fed. 795, 796, pledge of automobiles in warehouse without delivery until pledgor's default within four months of bankruptcy was not illegal preference except as to intervening creditors perfecting liens on property; In re Elletson Co., 174 Fed. 862, holding deed of trust executed to bank more than four months before bankruptcy and submitted to referee for adjudication of bank's claim was invalid under West Virginia decisions; In re McDonald, 173 Fed. 101, chattel mortgage of property remaining in mortgagor's possession invalid except between parties for want of record required by Massachusetts law, is invalid as against mortgagor's trustee in bankruptcy; In re Bement, 172 Fed. 100, 96 C. C. A. 412, under statute of Wisconsin of 1898 requiring contracts for conditional sale of personal property to be recorded, unrecorded conditional sale of goods to retailer reserving title in vendor with right to reclaim possession is void as against general creditors of vendee; Sexton v. Kessler & Co., 172 Fed. 538, 544, 545, 40 L. R. A. (N. S.) 639, 97 C. C. A. 161, holding Manchester house had equitable lien on pledged securities in possession of debtor bank giving it right to possession, and transfer of possession within four months of bankruptcy was not preference; Walter A. Wood Co. v. Eubanks, 169 Fed. 933, 95 C. C. A. 273, holding unrecorded contract to furnish goods to bankrupt on condition that goods on hand and those received under contract should be held as

427

HUMPHREY v. TATMAN.

198 U. S. 91-95

collateral security in trust for seller was enforceable as trust agreement against trustee in bankruptcy; In re Hickerson, 162 Fed. 347, 351, 353, under Idaho statute of 1887 making unrecorded chattel mortgage void against creditors, chattel mortgage of merchant's stock of goods to bank, unrecorded for year and until within few days of bankruptcy is void as to creditors of mortgagor; In re Grainger, 160 Fed. 74, 87 C. C. A. 225, under section 2973 of California Civil Code, chattel mortgage of property other than that specified in section 2955 executed in good faith and for value, is valid against bankrupt mortgagor's general creditors; Hanson v. W. L. Blake & Co., 155 Fed. 349, where mortgagor insures property according to agreement at time debt was created, mortgagee has equitable lien on proceeds of policy enforceable against trustee in bankruptey; In re Reynolds, 153 Fed. 298, where bill of sale of merchant's stock, fixtures, and storehouse, is not recorded as required by State law, and transfer of possession is within four months of bankruptcy, sale is void as preference; Atchison T. &. S. F. Ry. Co. v. Hurley, 153 Fed. 509, 82 C. C. A. 453, oral agreement of railroad to advance money to coal company to meet pay-roll was advance payment for coal to be delivered under contract and pledge of coal when mined, and valid as against bankrupt coal company and trustees in bankruptcy; In re E. M. Newton & Co. 153 Fed. 844, 83 C. C. A. 23, under Arkansas law unrecorded conditional contract of sale, providing that vendee may sell goods in ordinary course of business, is valid; In re Fabian, 151 Fed. 950, vendor selling goods under unrecorded contract to receive cost price of goods sold each week by retailer and with right to reclaim goods is entitled upon default of vendee to recover goods or proceeds from trustee in bankruptcy; Fisher v. Zollinger, 149 Fed. 57, 59, 79 C. C. A. 76, since under Ohio law chattel mortgage on after-acquired property becomes lien as of its date, where mortgagee took possession within four months of bankruptcy, no preference created; Locser v. Savings Deposit Bank & Trust Co., 148 Fed. 976, 977, 18 L. R. A. (N. S.) 1233, 78 C. C. A. 597, State statute requiring conveyance to be recorded is law by which such recording is "required" within meaning of Bankruptcy Act; In re Plattville Foundry & Machine Co., 147 Fed. 830, determining rights of chattel mortgage where mortgagor's property sold in bankruptcy proceedings; Wood v. United States etc. Guaranty Co., 143 Fed. 427, surety's right to property depends on facts existing when right was given, not when possession was taken; In re Chadwick, 140 Fed. 677, under Ohio statute relating to recordation of chattel mortgages, failure to record mortgage within four months of mortgagor's bankruptcy does not make it preference; Rogers v. Page, 140 Fed. 599, 72 C. C. A. 164, under Tennessee laws, where unrecorded mortgage given more than four months prior to bankruptcy, its payment within four months is not preference; Aetna Ins. Co. v. Evans, 57 Fla. 344, 49 South. 62, under Florida statutes lien is created by service of writ of garnishment, and service of such writ more than four

months before bankruptcy creates valid lien as against trustee; Coggan v. Ward, 215 Mass. 15, 102 N. E. 337, taking possession of property under unrecorded mortgage within few days of bankruptcy, before third persons had acquired liens, gave good title against trustee in bankruptcy under Rev. Laws, c. 198, § 1; Keepers v. Fleitmann, 213 Mass. 211, 100 N. E. 334, delivery to mortgagee of chattels wrongfully taken from possession of another mortgagee by joint act of mortgagee and mortgagor is not delivery within meaning of statute; Putnam v. Southworth, 197 Mass. 273, 83 N. E. 889, failure to record trust agreement prevents beneficiary from enforcing it against bankrupt; Richardson v. Winnisimmet National Bank, 189 Mass. 33, 75 N. E. 98, transfer to defendant within four months of filing petition in bankruptcy having been made by valid creditor, transaction not violation of Bankruptcy Act of 1878; Stewart v. Hoffman, 31 Mont. 193, 81 Pac. 3, as to whether chattel mortgage given to surety was preference; First Nat. Bank of Albuquerque v. Haverkampf, 16 N. M. 517, 121 Pac. 38, chattel mortgage to bank on stock of goods unrecorded for over year but recorded within more than four months of bankruptcy upon discovery that mortgagor is violating agreement by increasing indebtedness, is valid lien against general creditors; Godwin v. Murchison Nat. Bank, 145 N. C. 326, 59 S. E. 156, upholding contract of bankrupt to assign bonds to be received in payment for real estate to bank in consideration of present loan, as against trustee in bankruptcy; United Nat. Bank v. Tappan, 33 R. I. 28, 79 Atl. 956, where bankrupt stockholder repledges securities of customers for margins to bank by which they were in part sold to satisfy debt to bank, customers of broker are entitled to subrogation to bank's claim, so far as to entitle them to balance of proceeds of repledged collateral as against trustees in bankruptcy; Ex parte City of Anderson, 82 S. C. 141, 63 S. E. 354, order of court directing sale of bankrupt's property without mentioning liens, only authorizes sale subject to existing liens, including judgment lien; Gardner v. Planters' Nat. Bank, 54 Tex. Civ. 581, 118 S. W. 1150, where garnisher has notice of prior lien, such lien will prevail against rights of garnisher and trustee in bankruptcy to whom money is subsequently transferred with notice of prior lien; Mower v. McCarthy, 79 Vt. 152, 153, 118 Am. St. Rep. 942, 7 L. R. A. (N. S.) 418, 64 Atl. 580, 581, father lending money to son to go into business and taking chattel mortgage on stock, is entitled to take possession upon failure of son to repay loans, as against son's creditors; dissenting opinion in Bunday v. Huntington, 224 Fed. 855, 140 C. C. A. 415, majority holding mortgage superseded contract of sale requiring purchaser to insure for benefit of seller and payment of insurance money to seller holding mortgage was preference. Distinguished in First Nat. Bank v. Connett, 142 Fed. 37, 5 L. R. A. (N. S.) 148, 73 C. C. A. 219, under Rev. Stats. Mo. 1899, § 3404, chattel mortgage given to creditor by insolvent more than four months prior to bankruptcy is voidable preference; English v. Ross, 140 Fed. 637,

429

REMINGTON v. CENTRAL PAC. R. R. CO. 198 U. S. 95-100

determining whether deed intended as security is preference under amendment of February 5, 1903, to section 60a of Bankruptcy Act.

Questions of State law as to which State court decisions must be followed in actions originating in, or removed to, Federal courts. Note, 40 L. R. A. (N. S.) 416.

Construction of provision of Bankruptcy Act computing period within which preferential transfer is invalid from record or Registry thereof. Note, Ann. Cas. 1914D, 707.

Necessity for notice of transfer not required to be recorded to start four months' period relatively to preferences under section 60, Bankruptcy Act. Note, 9 L. R. A. (N. S.) 587.

198 U. S. 95-100, 49 L. Ed. 959, 25 Sup. Ct. 577, REMINGTON CENTRAL PACIFIC R. R. CO.

Dismissal of action removed to Federal court from State court for lack of valid service of process involves jurisdiction of Federal court in manner to sustain direct review by Supreme Court.

Approved in Board of Trade v. Hammond Elevator Co., 198 U. S. 435, 49 L. Ed. 1116, 25 Sup. Ct. 740, reaffirming rule; G. & C. Merriam Co. v. Saalfield, 241 U. S. 26, 60 L. Ed. 871, 36 Sup. Ct. 477, denying motion to dismiss direct appeal and affirming order of District Court quashing substituted service of process on nonresident and proceedings based thereon in action for unfair competition; Herndon-Carter Co. v. James N. Norris, Son & Co., 224 U. S. 498, 56 L. Ed. 858, 32 Sup. Ct. 550, direct appeal lies to this court under act of 1891 upon questions whether corporation was doing business in Kentucky and whether certain person was its agent at time of attempted service; Mechanical Appliance Co. v. Castleman, 215 U. S. 440, 54 L. Ed. 275, 30 Sup. Ct. 125, under section 5 of Court of Appeals Act as amended in 1897, question whether corporation was doing business in State and whether person served with process was agent of corporation is reviewable on direct appeal to Supreme Court; Boston etc. R. R. Co. v. Gokey, 210 U. S. 161, 52 L. Ed. 1004, 28 Sup. Ct. 657, defeated defendant having objected to jurisdiction of court on ground of defective service is not bound to certify question of jurisdiction directly to this court under section 5 of Act of 1891, but may certify whole case to Circuit Court of Appeals; In re Garrosi, 229 Fed. 366, 143 C. C. A. 483, denying petition for mandamus, prohibition or certiorari to district judge of Porto Rico from proceeding further in equity cause which will come to decree appealable to Circuit Court of Appeals; Buxton v. Pennsylvania Lumber Co., 221 Fed. 723, sale of land on execution issued on judgment of State court after cause was removed to Federal court is void; United States ex rel. Butterworth v. Sessions, 205 Fed. 504, 123 C. C. A. 570, Circuit Court of Appeals has no power in mandamus proceeding to reverse action of District Court in denying motion to remand cause to State court; Olds v. Herman H. Hettler Lumber Co., 195 Fed. 11, 115 C. C. A. 91,