Mattley v. Giesler
| Decision Date | 24 April 1911 |
| Docket Number | 3,462. |
| Citation | 187 F. 970 |
| Parties | MATTLEY v. GIESLER. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John S Bishop (R. S. Mockett and F. A. Peterson, on the brief), for appellant.
J. M Stewart (D. H. McClenahan, on the brief), for appellee.
Before HOOK, Circuit Judge, and RINER and W. H. MUNGER, District judges.
A chattel mortgage on a stock of merchandise and fixtures in Nebraska, given eight months before the mortgagor became bankrupt, was withheld from the records by the mortgagee pursuant to agreement until two days before bankruptcy proceedings were commenced. The mortgagee then filed the mortgage, took possession of the mortgaged property, and sold it. The mortgagor was insolvent when the mortgage was filed and the mortgagee had reasonable grounds for believing it and that he would thereby secure a preference. The trustee in bankruptcy sued the mortgagee for the value of the property, claiming the mortgage was fraudulent and void under the state law, and therefore so under section 67 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 564 (U.S. Comp. St. 1901, p. 3450)); also that the mortgagee secured a voidable preference under section 60. The trial court held against the trustee and dismissed his bill of complaint. Mattley v. Wolfe (D.C.) 175 F. 619. The trustee appealed.
We need not consider the claim that the mortgage was fraudulent and void under the state law, for we think the court erred in holding there was no voidable preference. By the amendment of 1903 (Act Feb. 5, 1903, c. 487, Sec. 13, 32 Stat. 799 (U.S. Comp. St. Supp. 1909, p. 1314)) there was added to section 60a of the bankruptcy act defining preferences the clause:
'Where a preference consists in a transfer, such period of four months shall not expire until four months after the date of the recording or registering of the transfer, if by law such recording or registering is required.'
In First Nat. Bank v. Connett, 73 C.C.A. 219, 142 F. 33, we held that the term 'required' had reference to the character of the instrument of transfer, rather than to the particular persons who might or might not be affected by the withholding of it from the records. Under the amended section an instrument of transfer required to be recorded or registered speaks at the time the requirement is complied with, and not at the time of its execution. A failure to record or register when required may entail a consequence which does not result from the state law alone. A transfer, good as to the bankrupt and his general creditors while not of record, may nevertheless be voidable as to the trustee, representing them, if the instrument be of a class required to be recorded or registered. The amendment was directed against secret liens, and was intended to change the rule of the prior decisions upon that subject. This construction has been approved in English v. Ross (D.C.) 140 F. 630; Loeser v. Trust Co., 78 C.C.A. 597, 148 F. 975; In re Reynolds, 153 F. 295; In re Beckhaus, 100 C.C.A. 561, 177 F. 141...
To continue reading
Request your trial
-
In re T. H. Bunch Commission Co.
...State Bank v. Gleason, 178 F. 1004, 101 C.C.A. 663, affirmed without an opinion, on the authority of the Connett Case; Mattley v. Giesler, 187 F. 970, 110 C.C.A. 90; Lathrop Bank v. Holland, 205 F. 143, 123 C.C.A. Williams v. German-American Trust Co., supra; The T. L. Smith Co. v. Orr, 224......
-
Benner v. Scandinavian American Bank
... ... Loeser v. Savings ... Deposit Bank & Trust Co., 148 F. 975, 78 C. C. A. 597, ... 18 L. R. A. (N. S.) 1233; Mattley v. Giesler, 187 F ... 970, 110 C. C. A. 90; In re Beckhaus, 177 F. 141, ... 100 C. C. A. 561; First National Bank v. Connett, ... ...
-
Big Four Implement Co. v. Wright
... ... filed until within four months of the bankruptcy, they must ... be aside on that ground. Mattley v. Geisler, 187 F ... 970, 110 C.C.A. 90 (8th Cir.). But they are not instruments ... of that character. They are in the usual form of conditional ... ...
-
Bunch v. Maloney
... ... difference between these views is of much importance in the ... administration of the Bankruptcy Act. The Connett ... Case, supra, and Mattley v. Giesler, 110 C.C.A. 90, 187 ... F. 970, in this court, were cited by the Supreme Court. Each ... involved a controversy between a chattel ... ...