#### In Re Assignment of M. B. Wise, M. A. Fisher, Assignee, The Rock Island Plow Company, Intervener, Appellant.

Conditional Sale: recovery oe goods : title of assignee. An assignee for the benefit oí creditors takes only the title of his assignor and where goods are held on a contract of conditional sale, reserving title to the seller until paid for, the seller by intervention may reclaim the goods from the assignee without previous demand though the contract was not recorded; and where a note was given by the terms of the contract in settlement for the goods, the value of those reclaimed should be credited thereon and the balance due may be proved as a claim against the estate.

*360*Appeal from Keokuk District Oourt.*— HoN. J. T. Scott, Judge.

Saturday, October 17, 1903.

Ok August 12, 1901, M. B. Wise made an assignment for the benefit of his creditors. Included in the property transferred were some plows, harrows, a corn planter, and •cultivator, bargained to him by the Bock Island Plow 'Company, and delivered to him by virtue of a contract .-entered into December 21, 1899, stipulating:

“It is expressly agreed that all bills are to be settled by note on receipt of goods or upon monthly balances, at •the option of the party of the second part, drawn and payable at some convenient bank or express office, with •exchange on Chicago, New York, St. Louis and collection ■charges. It is, however, further understood and agreed that all goods shipped or received under this contract or any future contract, of which the printed stipulations of this agreement are a part, as hereinafter provided, and the proceeds of the sale of any of such goods whether in cash, notes, book accounts or other proceeds, are to be held in trust for and subject to order of the party of the second part until party of the first part has paid in full all obligations due or to become due to party of the second part for the same.

“The title to and ownership of all goods shipped under tthis contract shall remain vested in party of the second par^ until the price thereof shall be paid in cash, and -until all notes given therefor and to be given under this .contract are paid, and party of the second part shall be .entitled to the possession of the same whenever they, the said party of the second part, feel insecure, or the party of the first part may become insolvent, or bankrupt, but nothing in this contract shall be deemed as releasing party of the first part from their obligation to pay for said goods and all the notes hereby contemplated.”

*361A note for $179.88 was executed October 25, 1900, payable October 1st following, in pursuance of the above ■condition. The company, by petition of the intervention, Alleged these facts, and prayed for the possession of the ■property. The answer of assignee put plaintiff upon his proof, and, upon hearing, the petition was dismissed. 'The intervener *appeals.*

Reversed.

*Brown c& Willcoeleson*for appellant.

*Stockman & Hamilton*for appellee.

Ladd, J.

Under the contract, intervener retained title to the goods as security for the purchase price. As ■these remained in possession of the assignor, and were un-disposed of when the deed of assignment was executed, it is of no consequence that the agreement was never recorded. The assignee acquired no better title to the property than had Wise, the assignor. *Arnold v. Grimes,*2 Iowa, 1; *Roberts v. Corbin, 26*Iowa, 316; *Warner v.*Jameson, 52 Iowa, 70; *Hooven etc., Co. v. Burdette,*153 Ill. 672 (39 N. E. Rep. 1107.) He took the property subject to all equities, liens, or incumbrances existing against ’the same in the hands of the insolvent, and was not a *■bona ñde*purchaser for value. See decisions collected in 4 Cyc. 219. And as the intervener was 'entitled to the return of the property as against Wise, we know of no ¡reason for denying him the enforcement of the contract ;as against the assignee.

It is suggested that the proper remedy was by replev-ing the goods, instead of asking for their return through a petition of intervention. The point was not made in the ■district court, and cannot be raised here for the first time. But as the property was in *custodia le.qis (Hamilton-Brown Shoe Co. v. Mercer,*84 Iowa, 537,) it is doubtful if the method pursued, long approved in practice, can be thought objectionable.

*362The intervener asked that the articles mentioned be-returned, and that, after deducting the value of all so. returned from the note, the remainder owing thereon be established as a claim against the estate. Appellee insists-that the remedies sought were inconsistent. Not so, for *the*title to the property was retained by the vendor as-security, and all prayed was the allowance of that part of the debt not satisfied by retaking the articles on hand. As the contract fixed the price of the articles to be ordered, returned, and for which credit should have been given, the-evidence of the agent as to value was immaterial. No-demand was essential prior to the application to the court, for the order, nor was the company called upon to surrender its note until satisfied in the manner stipulated.. An order should have been entered as prayed. — Reversed..