Opinion of the court. The statute provides that every mortgage of goods and chattels, where there is no change in the possession of the things mortgaged, "shall be absolutely void," as against subsequent purchasers and mortgagees in good faith, “unless the mortgage, or a true copy thereof, shall be forthwith deposited" with the proper officer. The Supreme Court of the State has held that the omission to deposit forthwith, as directed, does not avoid the mortgage in toto, but that, whenever deposited, it becomes effective from that time.* That court has also held that actual notice to a subsequent mortgagee, before his mortgage is taken, is conclusive evidence of mala fides on his part.† In cases like this the assignees stand in the place of the bankrupt; his rights are their rights; and theirs, like the liens of judgments at law, are subordinate to all the prior liens, legal and equitable, upon the property in question.‡ This mortgage was deposited three days less than six months before the filing of the petition in bankruptcy. This raises a question under the bankrupt statute which it is necessary to consider. The first clause of the 35th section avoids certain acts of the bankrupt touching his effects, if done within four months before the filing of the petition in bankruptcy. The second clause imposes the like result, if the transaction be within six months of that time. To bring a case within the first clause the act must have been done by a person insolvent, or in contemplation of insolvency, with a view to give a preference to a creditor or person having a claim against, or who is under a liability for, the bankrupt, and such person must have reason to believe that the transaction is in fraud of the statute. The category of the second clause contains the same re * Wilson v. Leslic, 20 Ohio, 161. Kendall & Co. v. Mason, 7 Ohio State, 199. Lempriere v. Pasley, 2 Term, 485; Belcher v. Oldfield, 6 Bingham's New Cases, 102; Doremus v. Walker, 8 Alabama, 194; Peck v. Jenness, 7 Howard, 612; Fletcher v. Morey, 2 Story, 555; Archbold on Bankruptcy 314. Opinion of the court. quirement of insolvency, or contemplation of insolvency, on the part of the person doing the act. The recipient may be any one who has reason to believe him insolvent or acting in contemplation of insolvency, and that the act was done by him to prevent the property from coming into the hands of his assignee in bankruptcy, and from being distributed under the bankrupt law. Upon comparing the two clauses carefully together we are satisfied that the first clause was intended to refer to the past and the secoud to the present. The language employed in the first clause imports clearly that the consideration must be one growing out of a former transaction, and that the recipient must stand in the relation thus created to the other party. It is equally clear that the second clause, enlightened by this construction of the first one, must be limited to cases where the transaction in question was original and complete in itself at the time it occurred, and had no reference for its consideration to anything between the parties which had gone before it. It is only by this construction that the two clauses can be made to harmonize and full and distinct effect be given to each. Any other construction would make them cover the same ground and obliterate everything by which one is differenced from the other, except the limitation of time which they respectively prescribe. It is not to be supposed that such was the intention of the law-making power. This view of the subject was taken by the Circuit Court for the District of Missouri, and subsequently there by one of the justices of this court. We can see no answer to the conclusion at which they arrived.* According to this construction the mortgage to Gibson falls within the second category, as to the time within which its validity could be challenged. Is it therefore void? To this there is a conclusive answer in the negative. The statute of Ohio deprived the mortgage of effect unti. "deposited"-as to creditors, subsequent purchasers, and mortgagees in good faith. These assignees are neither. As be * Bean v. Brookmire, 10 American Law Register, N. S. 181. Statement of the case in the opinion. tween the mortgagor and the mortgagee and subsequent mortgagees and purchasers with notice, the mortgage was valid and took effect from the time of its delivery to Gibson, which was the 8th of March, more than six months before the filing of the petition in bankruptcy. The mortgaged premises have been converted into money. But this does not affect the rights of the parties. The lien of the mortgage followed the fund into the hands of the assignees, and binds it there in all respects as it bound, before conversion, the property which the fund represents.* Gaylord, Son & Co. indorsed for Moore & Sons to the extent of $10,000, as early as May, 1867, which was repeated from time to time. In May, 1868, Moore & Sous applied to them for a definite arrangement for indorsements to the extent of $20,000, to be secured by a chattel mortgage. After inquiry, they agreed to indorse for $15,000, and possibly $20,000, their liability to be secured as proposed. In pursuance of this arrangement, on the 23d of January, 1868, they indorsed for $5000, and afterwards made other indorsements, amounting in all to $17,000. The first mortgage was made on the 27th of January, 1868. It was held by Gaylord, Son & Co., and not filed. Later-probably in MarchMoore & Sons pressed for further indorsements, which were refused. Shortly afterwards Moore & Sous advised Gaylord that judgments were about to be taken against them, but insisted they were solvent. The mortgage was shown to counsel, who objected to it, but upon what ground does not appear. He advised that another should be taken. This was done on the 18th of March, and the mortgage was deposited on the same day with the proper officer, but some hours later than the deposit of the mortgage to Gibson. It appears by the face of the instrument that the signature and seal of the firm were affixed by one of the firm in the absence of the others. There was the same prior authority and subsequent acquiescence as in the case of the Gibson mortgage. It recited that Gaylord, Son & Co. were liable * Astor v. Miller, 2 Paige, 2 68-78; Sweet v. Jacocks, 6 Id. 355. Opinion of the court. as indorsers and otherwise for certain debts of Moore & Sons; that Moore & Sons were indebted to Gaylord, Son & Co.; and that Moore & Sons were desirous to renew their paper with the indorsement of Gaylord, Son & Co., and was conditioned that if Moore & Sons should save Gaylord, Son & Co. from loss by reason of said indorsements and debtGaylord, Son & Co. agreeing to renew for eighteen months -then the mortgage was to be void. After the failure of Moore & Sons, Gaylord, Son & Co. took up notes which they had indorsed for the mortgagors, amounting to $17,000. The mortgagees also held a note of the mortgagors for iron sold by the former to the latter, amounting to $400, making the aggregate of the indebtedness of Moore & Sons to Gaylord, Son & Co., exclusive of interest, $17,400. We hold this mortgage also to be valid under the laws of Ohio. The views we have expressed as to the Gibson mortgage, considered with reference to the statutes of Ohio, apply equally to the one here under consideration, and render it needless to say anything further upon the subject. Being founded upon a past consideration, it falls within the first clause of the 35th section of the bankrupt law, which limits the right of attack upon such instruments to those executed within four months prior to the filing of the petition in bankruptcy. In respect to this statute also it must, therefore, be held valid. It was upon the same property as the mortgage to Gibson. Like that mortgage, its force and effect reach and bind the fund into which the property has been converted. It was contended with great ability by the counsel of Gaylord, Son & Co. that as regards the limitations of time under the 35th section of the bankrupt law this mortgage must be regarded as if it had been executed at the date of the prior one for which it was substituted, and numerous authorities were cited to sustain the proposition. The view we have taken of the case has rendered it unnecessary to consider this point. Statement of the case. The counsel representing both mortgages, in the argument in this court, advised us that we need not decide the question of priority as between the two instruments, they having made an agreement which fixes their respective rights. We have not, therefore, considered the question. If there be any surplus after satisfying these claims it must be distributed to the general creditors. So much of the decree of the Circuit Court, as is brought before us by this appeal, is REVERSED, and the cause will be remanded to that court, with directions to enter a decree IN CONFORMITY TO THIS OPINION. HOOK V. PAYNE. 1. In a suit in the Circuit Court of the United States by a distributee of the estate of a decedent to recover a distributive share, the mere fact that the administrator is ordered to account before a master does not make parties all who were entitled to distribution, nor authorize a decree in their favor. 2. If such persons do not appear before the master no decree can be made for or against them, because they would not be bound thereby. 8. If they should appear and claim an interest, if there are controverted matters between them and the administrator outside of the mere accounting to be made by him, this can only be decided on proper pleadings and regular hearing by the court. 4. A bill which seeks to set aside a fraudulent receipt obtained by an administrator from one distributee, and to recover the amount coming to that distributee, is not a suit in which all other persons interested in the estate can be heard unless they are made parties, or make themselves parties to the suit in some appropriate mode. 5. In a State where the law allows ten per cent. per annum interest, a docree will not be reversed, because it allows against a fraudulent administrator eight per cent. interest with annual rests. APPEAL from the Circuit Court for the District of Missouri; the case being thus: Ann Payne, a citizen of Virginia, filed a bill in chancery in the Circuit Court of the United States for Missouri, against |
