ROGERS, Circuit Judge
(after stating the facts as above). This court was called upon to pass upon this same motion in February, 1913. The court below had then entered an order in which it granted the relief asked, and we reversed its action in part. We then said:
“So much of the order, therefore, as grants a stay will be affirmed. We think this measure of relief all that is called for at the present time and sufficient to determine the rights of the parties. The other portions of the order are, however, set aside without prejudice to further proceedings if necessary.” In re Federal Biscuit Co., supra.
The motion was a year later renewed, and this time the learned District Judge, to whom the.application was made, denied the motion and said:
“In the first place, I do not see why the decision of the Circuit Court of Appeals does not require the denial of this motion. This seems to be a mere renewal, on the same facts, of the motion granted by an order of Judge Hough which was afterwards reversed by the Court of Appeals.”
The appeal taken from the order denying the motion raises the question whether the facts are the same now as they were when this matter [224]*224was last before us, and, if they are not the same, whether the difference is such as to make it proper for us to modify in any respect our former action. But we have failed to discover that anything has occurred since the case was last before us which should change the conclusion we reached at that time.
[1] It is said that the attachment obtained by Vick in his suit against the bankrupt in the state court should be vacated, and it is conceded that the attachment was levied within four months of the filing of the petition in bankruptcy. The District Judge in his opinion says:
“I do not see the necessity of an order vacating the attachment in the suit in the state court brought by Vick. That attachment was vacated and discharged by the bond given to take its place by the Massachusetts Bonding Company.”
It is possible that the District Judge did not have the matter clearly presented to him, and'we are free to say that we do not think it was clearly presented in the argument .in this court. It is important to distinguish between the discharge of the lien of the attachment by the, bond given to take its place and the vacation of the writ. The two things are quite distinct, and the District Judge apparently did not have his attention called to the distinction, and it was not clearly pointed out in the argument before us. The bond given by the Massachusetts Bonding Company-bonding the attachment in the suit in the New York Court was authorized under the New York statutes, and the purpose of the statute as explained in Christal v. Kelly, 88 N. Y. 285, 292 (1882), by Chief Judge Andrews was the following:
“It was intended for the benefit of defendants whose property had been, or might be,, attached under process, to enable them to substitute, for the property which had been or might be attached, security for the payment of any judgment which might be recovered in the action, and thereby relieve their property from, the actual or apprehended lien of the process.”
[2] And the effect -of the dissolution of an attachment is to release the attached property, though no order of dissolution may be entered in the court where’the action is pending.
[3] A lien acquired by an attachment of an insolvent debtor is a lien “obtained through legal proceedings” and is," by the express terms of the Bankruptcy Act, § 67f, dissolved by the filing of a petition in bankruptcy by or against the debtor, if that occurs within four months after its date. And the effect of the statute in dissolving attachments is not confined to those issuing from courts of the United States, but applies as well to the process of the state courts. See Black on Bankruptcy, § 376, and Bank of Columbia v. Overstreet, 10 Bush (Ky.) 148.
The discharge of the lien of attachment is one thing, the vacation of the writ is another. The discharge of the lien does not necessarily vacate the writ. See King v. Block Amusement Co., 126 App. Div. 48, 111 N. Y. Supp. 102 (1908), affirmed 193 N. Y. 608, 86 N. E. 1126. The question whether the writ shall be vacated is important as affecting the liability of the surety.
[4] The question whether the writ of attachment should be vacated was considered in the New York case above cited. It was decided in the Appellate Division of the Supreme Court, and affirmed by the Court [225]*225of Appeals, that a warrant of attachment issued within four months of the filing of a petition in bankruptcy against defendant and discharged by an undertaking for which the surety takes no security would not be vacated after the adjudication in bankruptcy so as to discharge the surety. We think the same ruling should be applied under the facts of the case at bar, although in this case there has been no discharge of the bankrupt, and property of the bankrupt is held in trust for the indemnity of the surety.
[5] The statutes of the United States prevent the courts of the United States from issuing injunctions to stay proceedings in any court of a state except in cases “where such injunction may be authorized by any law relating to proceedings in bankruptcy.” Revised Statutes U. S. § 720 (U. S. Comp. St. 1901, p. 581). And it is provided in the Bankruptcy Act, §11, that:
“A suit which is founded’ upon a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition against him shall be stayed until after an adjudication or the dismissal of the petition; if such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or, if within that time such person applies for a discharge, then until the question of such discharge is determined.”
In pursuance of this provision of the Bankruptcy Act the United States District Judge for'the Southern District of New York on September 25, 1912, issued an order staying Vick, his attorneys and agents, from taking any further action in the suit in the courts of the state of New York. That stay was for an indefinite period. But under the statute it is not within the power of the court to grant a stay for a longer period than 12 months after the date of the adjudication of bankruptcy except in cases where the bankrupt applies for a discharge. If he has made no application for a discharge, and the time has passed within which an application can be made, there evidently is no right longer to restrain the proceedings in the, state court, and, upon the facts being properly brought to the attention of the District Court, that court should vacate the stay previously granted. But while it wás stated in argument that the bankrupt has never been discharged, and that the matter of his discharge is not pending, and that he has not even applied for a discharge, there is nothing in the record before us to show these facts.
[6, 7] As a general rule equity follows the law. If a person is capable of holding the legal title to property, he is capable of holding the equitable title. If he is incapable of holding the legal title, he is equally incapable of having a trustee hold it for him.
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ROGERS, Circuit Judge
(after stating the facts as above). This court was called upon to pass upon this same motion in February, 1913. The court below had then entered an order in which it granted the relief asked, and we reversed its action in part. We then said:
“So much of the order, therefore, as grants a stay will be affirmed. We think this measure of relief all that is called for at the present time and sufficient to determine the rights of the parties. The other portions of the order are, however, set aside without prejudice to further proceedings if necessary.” In re Federal Biscuit Co., supra.
The motion was a year later renewed, and this time the learned District Judge, to whom the.application was made, denied the motion and said:
“In the first place, I do not see why the decision of the Circuit Court of Appeals does not require the denial of this motion. This seems to be a mere renewal, on the same facts, of the motion granted by an order of Judge Hough which was afterwards reversed by the Court of Appeals.”
The appeal taken from the order denying the motion raises the question whether the facts are the same now as they were when this matter [224]*224was last before us, and, if they are not the same, whether the difference is such as to make it proper for us to modify in any respect our former action. But we have failed to discover that anything has occurred since the case was last before us which should change the conclusion we reached at that time.
[1] It is said that the attachment obtained by Vick in his suit against the bankrupt in the state court should be vacated, and it is conceded that the attachment was levied within four months of the filing of the petition in bankruptcy. The District Judge in his opinion says:
“I do not see the necessity of an order vacating the attachment in the suit in the state court brought by Vick. That attachment was vacated and discharged by the bond given to take its place by the Massachusetts Bonding Company.”
It is possible that the District Judge did not have the matter clearly presented to him, and'we are free to say that we do not think it was clearly presented in the argument .in this court. It is important to distinguish between the discharge of the lien of the attachment by the, bond given to take its place and the vacation of the writ. The two things are quite distinct, and the District Judge apparently did not have his attention called to the distinction, and it was not clearly pointed out in the argument before us. The bond given by the Massachusetts Bonding Company-bonding the attachment in the suit in the New York Court was authorized under the New York statutes, and the purpose of the statute as explained in Christal v. Kelly, 88 N. Y. 285, 292 (1882), by Chief Judge Andrews was the following:
“It was intended for the benefit of defendants whose property had been, or might be,, attached under process, to enable them to substitute, for the property which had been or might be attached, security for the payment of any judgment which might be recovered in the action, and thereby relieve their property from, the actual or apprehended lien of the process.”
[2] And the effect -of the dissolution of an attachment is to release the attached property, though no order of dissolution may be entered in the court where’the action is pending.
[3] A lien acquired by an attachment of an insolvent debtor is a lien “obtained through legal proceedings” and is," by the express terms of the Bankruptcy Act, § 67f, dissolved by the filing of a petition in bankruptcy by or against the debtor, if that occurs within four months after its date. And the effect of the statute in dissolving attachments is not confined to those issuing from courts of the United States, but applies as well to the process of the state courts. See Black on Bankruptcy, § 376, and Bank of Columbia v. Overstreet, 10 Bush (Ky.) 148.
The discharge of the lien of attachment is one thing, the vacation of the writ is another. The discharge of the lien does not necessarily vacate the writ. See King v. Block Amusement Co., 126 App. Div. 48, 111 N. Y. Supp. 102 (1908), affirmed 193 N. Y. 608, 86 N. E. 1126. The question whether the writ shall be vacated is important as affecting the liability of the surety.
[4] The question whether the writ of attachment should be vacated was considered in the New York case above cited. It was decided in the Appellate Division of the Supreme Court, and affirmed by the Court [225]*225of Appeals, that a warrant of attachment issued within four months of the filing of a petition in bankruptcy against defendant and discharged by an undertaking for which the surety takes no security would not be vacated after the adjudication in bankruptcy so as to discharge the surety. We think the same ruling should be applied under the facts of the case at bar, although in this case there has been no discharge of the bankrupt, and property of the bankrupt is held in trust for the indemnity of the surety.
[5] The statutes of the United States prevent the courts of the United States from issuing injunctions to stay proceedings in any court of a state except in cases “where such injunction may be authorized by any law relating to proceedings in bankruptcy.” Revised Statutes U. S. § 720 (U. S. Comp. St. 1901, p. 581). And it is provided in the Bankruptcy Act, §11, that:
“A suit which is founded’ upon a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition against him shall be stayed until after an adjudication or the dismissal of the petition; if such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or, if within that time such person applies for a discharge, then until the question of such discharge is determined.”
In pursuance of this provision of the Bankruptcy Act the United States District Judge for'the Southern District of New York on September 25, 1912, issued an order staying Vick, his attorneys and agents, from taking any further action in the suit in the courts of the state of New York. That stay was for an indefinite period. But under the statute it is not within the power of the court to grant a stay for a longer period than 12 months after the date of the adjudication of bankruptcy except in cases where the bankrupt applies for a discharge. If he has made no application for a discharge, and the time has passed within which an application can be made, there evidently is no right longer to restrain the proceedings in the, state court, and, upon the facts being properly brought to the attention of the District Court, that court should vacate the stay previously granted. But while it wás stated in argument that the bankrupt has never been discharged, and that the matter of his discharge is not pending, and that he has not even applied for a discharge, there is nothing in the record before us to show these facts.
[6, 7] As a general rule equity follows the law. If a person is capable of holding the legal title to property, he is capable of holding the equitable title. If he is incapable of holding the legal title, he is equally incapable of having a trustee hold it for him. The principle is illustrated by the decisions under the statutes of mortmain. The courts held that the statutes .could not be evaded' by giving a legal title to a trustee to hold for a corporation. See Perry on Trusts, § 63; Lewin on Trusts, 36. The same principle is illustrated in the law relating to aliens. If a subject held a legal title to land for an alien cestui que trust, the crown could at any time claim the equitable interest. Vin. Ab. Alien, A, 8; Dumoncel v. Dumoncel, 13 Ir. Eq. 92; Barrow v. Wadkin, 24 Beav. 1. We find another illustration in the law relating to slaves. The courts held that, if a slave could not himself hold prop[226]*226erty, it could not be held for him by a trustee. Skrine v. Walker, 3 Rich. Eq. (S. C.) 262; Pool v. Harrison, 18 Ala. 514. A different principle was applied in the case of charitable trusts, but that exception to the rule is without bearing upon the question with which we are now concerned. Applying the principle first stated to the facts of this case, it would seem to follow that the trustee Richter’s right to hold the property in trust is exactly the same as would be the right of the bonding company to retain the property from the trustee in bankruptcy, if the property had been transferred directly to it by way of securing it against the possibility of loss or if it had been transferred directly to Anger to secure him. If either Anger or the bonding company would have been entitled to hold, then Richter it would seem would be entitled to hold, otherwise not. But if the real estate transferred to Richter had been transferred directly to the bonding company, the transaction would have been valid, unless the trustee in bankruptcy proved that the transfer was intended to create a preference or to defraud creditors, or that the bonding company had reason to believe that that was the object of the conveyance. The Bankruptcy Act, § 67, provides that:
“All conveyances, transfers, assignments, or incumbrances of Ms property or any part thereof, made or given by a person adjudged a bankrupt * * * within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration.”
And the act goes on to provide that property so transferred shall remain a part of the assets of the bankrupt, and it is made the duty of the trustee to reclaim the same for the benefit of the creditors. The act also provides against the -transfer of property by an insolvent within four months of the filing of the petition in bankruptcy, if the transfer operates as a preference and the person recovering it or to be benefited thereby, or his agent acting therein, had reasonable cause to believe that the enforcement of the transfer would .effect a preference.
There is no evidence in the record' which establishes the fact that the transfer of the property to Richter to secure Anger, and thus secure the bonding company, was invalid either under the provision which avoids transfers made to hinder and delay creditors or under the provision relating to preferences.
We understand that a suit brought by the trustee is now pending in a court in Massachusetts to set aside the transfer to Richter. What evidence the trustee may have to invalidate the transfer he will undoubtedly present to that court. It has not been presented to the District Court and therefore is not before us. We are therefore unable now, as we were unable when the case was last before us, to see why the court below, should order a cancellation of the bond executed by the bonding company, or a^ cancellation of the bond executed and delivered by Anger to the bonding company, or a cancellation of the trust agreement executed by Richter to secure Anger. There is not in the record any evidence of positive fraud or bad faith on the part of the bonding company or of Anger or of Richter. There is no evidence that the transfer of the real estate to Richter was intended to create a [227]*227preference or to defraud creditors. The transfer of the property to Richter to secure Anger, and Anger’s agreement with the bonding company and that company’s agreement with Vick were all contemporaneous acts. The security related to a present and not a past transaction, and there was a present consideration to support each one of the agreements. At a time when a debt is created the creditor has the right to dictate the terms on which'he will part with his money or property, and he may demand that he shall be first secured to such an extent as will satisfy him. >
It has been held that there is nothing in the Bankruptcy Act to interfere with the exercise of that right. In re Busby (D. C.) 124 Fed. 469. And it seems to be a settled principle of bankruptcy law, both in the United States and in England, that advances made in good faith tó a debtor to assist him in his business do not violate either the terms or the policy of the Bankruptcy Act. See Darby v. Boatmen’s Saving Inst., 1 Dill. 141, Fed. Cas. No. 3,571.
The order is affirmed, but without prejudice to further proceedings, if necessary.