Page:Federal Reporter, 1st Series, Volume 10.djvu/293

PLATT V. MATTHEWS. 281 �of thn batiknipt in certain mortgage bonds of the Carolina Central liailroad Company, which were transferred by the bankrupt to his ■wife, as is alleged, in fraud of creditors, and whioh were thereafter pledged to several of the parties defendant, including Murchison, as collateral to loans to Mrs. Matthews. As the bill does not allege that the transfers from Matthews to his wife were in contravention of the bankrupt act, but proceeds upon the theory that they were frauaulent as to creditors, and omits to aver that any creditors of Matthews ever obtained a judgment, or were ia a position to assert a lien upon the property transferred or a right to have the property applied to satisfy any lien they might perfect, the point is taken that the assignee cannot maintain the action. If the assignee has no other right to follow the property than was possessed by Matthews' creditors at the time of the bankruptcy proceeding, this position is undoubtedly correct, because it is clear that creditors at large can- not assail a fraudulent transfer of property by their debtor; they must put themselves in a position to perfect a lien therein by a judg- ment and execution, so as to subject the property to the satisfaction of the lien when the obstacle of the fraudulent transfer is removed. But the diffieulty with this position is that the bankrupt act vests the assignee with the title of all property conveyed by the bankrupt in fraud of creditors, and the assignee acquires his rights by the act itself, and not through what has been done by the creditors. By a statute of this state, also, an assignee or other trustee of the prop- erty of an individual may, for the benefit of creditors, disaffirm and treat as void all transfers in fraud of the rights of any ereditor, (Laws 1S58, c. 314,) and it has been decided that under this stat- ute an assignee in bankruptcy may maintain an action at law to re- cover the proceeds of property so transferred. Southard v. Benson, 72 N. Y. 434. In that case the precise question involved here was discussed, and it was determined that under the bankrupt act prop- erty so transferred is vested in the assignee by the express terms of the act, and that he represonts the creditors' rights without the technical obstructions to the enforcement of these rights by a ered- itor at large. The same conclusion was reached in the circuit court of this district by Judge Woodrufi, in Re Leland, 10 Blatchf. 503. Re Collms, 12 Blatchf. 548, contains expressions indicating a different view. But in both these cases the transfer attacked was not alleged to be fraudulent, but was a chattel mortgage, which was void by stat- ute as against creditors, because not filed as the law required. As was held in Stewart v. Platt, ICI U. S. 731, such a failure to file a chattel ��� �