Page:Federal Reporter, 1st Series, Volume 10.djvu/294

282 FEDERAL REPORTER. �mortgage could not be taken advantage of by the assignee, because it did not render the mortgage void as to creditors at large, but oiily to such creditors as had judgments ; as between mortgagor and mort- gagee it -was a valid lien upon the property, and the assignee took the property snbject to the lien. Where there is fraud the assignee can eontest the lien on the title of the vendee, although the bankrupt could not. Where there is no fraud he cannot assail the transaction unless it contravenes the bankrupt act, but acquires simply the rights of the bankrupt. Numerous other authorities might be cited to sus- tain the position that an assignee may proceed to recover property transferred in fraud of creditors whether any crediter -was in a position to attack the transfer or not, and that his title accrues by force of the act, and not through the rights of the crediter to assert the fraud. See authorities collected in Re Duncan, 14 N. B. E. 33. �The other objections to the bill presented by the deinurrer are not meritorious. The action is not for an accounting, nor does it assail the title of Murchison as a pledgee of the bonds. The bill seeks to reach only the interest in the bonds which would belong to Mrs. Matthews if the transfer to her had not been fraudulent, and in this behalf asks a recovery of Murchison as to the amount due him as pledgee, and an account of the proceeds in case of a sale. A tender of the amount due to the pledgees was not prerequisite to the relief asked. The bonds pledged to Murchison are identifiied by the num- bers, in connection with the general allegations of the bill, as part of those originally owned by Matthews, �The demurrer is overruled. ��� �