In re Wilkes

112 F. 975, 1902 U.S. Dist. LEXIS 417

• Court: District Court, E.D. Arkansas
• Decided: February 4, 1902
• Status: Published

Opinion

TRIEBER, District Judge

(after stating the facts as above). In Re Durham (D. C.) 104 Fed. 231, 4 Am. Bankr. R. 760, this court had occasion to pass upon one phase of this statute, but the question there involved was whether "the property thus seized could be claimed exempt under, the bankrupt law as' 'against the vendor. In the case at bar the contest is between the trustee in bankruptcy, representing all-ffhe creditors, and the vendor. The only ground upon vVliich the rnaiiúfáctúrihg company bases its claim is that it has a vendor’s lien .off]'the gopds, which was inchoate until the seizure, was made .by. the|officer, .whereupon it became a perfected lien, pro-tectee!'by- section 67, subd. “d,” of the-bankrtfptcy act. The construction-given this statute by the supreme court of the state will not síís'taÍh''this''cb'fitóitiori. In Bridgeford v. Adams, 45 Ark. 136, the court expressly held that this act, does not give the vendor a lien on the property lor the purchase price, but only provides that the property ;shall not b;e exempt from the vendor’s 'execution for the debt, and enables the plaintiff in a suit for the purchase money to seize it at once pendente lite to prevent a disposition thereof,_ if under the control .or possession of the vendee. Mr. Justice Rakim speaking for the court, says:

•‘It is a statutory process for impounding tlie chattel pendente lite, and does not imply that the lien exists independently of the process. It is analogous to a specific attachment, which is sometimes given in cases where a previous lien did exist, hut the previous lien is in no view essential to support it.” 45 Ark. 142.

The court further held that an assignee, in insolvency, though not an innocent purchaser for value so as to hold against an equity of a third party, which is in the nature of a lien upon the property itself, takes the property absolutely ,as against the vendor under this Statute. .<¡5 Ark. 143.

In Fox v. Industrial Co., 52 Ark. 450, 12 S. W. 875, the question before the court was whether the vendor’s privilege under this statute takes precedence of the rights of a prior attaching creditor, and the court held that, although an attaching creditor is not a purchaser for value, it did not, and that “it is, the settled construction of this Statute that it was not intended to give the vendor of personal property a lien upon the property sold, but only a remedy for impounding it to prevent the vendee from putting it beyond his reach, pendente lite.” 52 Ark. 452, 12 S. W. 875. To the same effect is Shoe Co. v. Block, 52 Ark. 458-467, 12 S. W. 1073. In Blass v. Hood, 57 Ark. 13, 20 S. W. 544, it was held that the privilege granted by this statote cannot be exercised after the vendee dies, although the assets of the deceased are a trust fund in the hands of the administrator, subject tp any liens or charges thereon. The ground upon which the court based its opinion was “that the vendor has no lien under the statute on the property.” 57 Ark. 15, 20 S. W. 544. The statute being analogous to an attachment,’ it is, like an attachment, “but a preliminary execution.” Grubbs v. Ellyson, 23 Ark. 287; Beard v. Wilson, 52 Ark. 290, 12 S. W. 567.

As the bankrupt act specifically declares that “all levies, judgments, attachments, or other liens obtained through legal proceedings' against a person Who is insolvent at any time within four momiA prior To a filing of a petition in bankruptcy against him should be, deemed mill and void” (section 67, subd. “f”), and the manufacturing, company in this case exercised the privilege granted it by the sta* ute on the day of the adjudication of the bankrupt, it necessarily follows that the seizure in this case is null and void, and the con ■ elusion of the referee in bankruptcy is, correct, and should be affirmed. Were this a contest between the bankrupt, who claimed the! property as exempt, and the manufacturing company, the rule would be different, and should be governed by that laid down by this court; in Re Durham,' supra, but such is not the case.

It is therefore ordered by the court that the judgment of the referee- is- affirmed iff all things.