The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-05-27
IMPORTANT OPINION OF CHIEF
JUSTICE CHASE. -.

O..
In the matter Of Charles II. Hynnc, bank
'upt.
CLAIM UNDER DEED OF TRUST AND CLAIM
FOR RENT ALLOWED AS PREFERRED DEBTS,
The question In this case arises upon n
petition of John Johns, Jr., assignee of
Charles Fl. Wynne, all involuntary hank
ript, who asks for Instructions rs to the or
der Of payment Of claims against the bank.
rupt estate. Wynnc was adjulicatcd a
bankrupt in the petition of Whcelwright,
Nudge Il Co., filed in the District Court of
the United States for the District Of Virgi-
mia on the Sth of June, 1867.
Enders, Paine, and Williams, claimed to
he preferred in payment under deed of
trust dated August, 1866, which was never
recorded or, if that claim be disallowcd,
then under deed of trust dated December
s, 1866, recorded March ,. 1867.
HaXall Il Co. also insist on preference
upon the ground that Wynne was tenant
under them of the warehouse which he oc-
cupied, and that under the law of Virginia
they as landlords had 4 lien for the rent due
at the date of the petition; to enforce
which, OH the 10th of June, 1867, they sued
out distress warrant for S2,120, the
amount of rent then due, and caused the
same to be levied on the goods then on the
premises. and subsequently, OH the 18th of
July, 1867. sued out an attachment, which
was levied the same day upon the same
goods. for 81 800, the amount of rent to be-
come due on the lst of December, 1867.
We will consider the claim to preference
in payment advanced in behalf of Enders,
Paine, and Williams, and we must say at
once that So far as this claim Is founded on
the deed of August, 1866. it cannot he adj
,,,it tod is. f,.,,n hat nrf-
gage or other conveyance made as security
for u debt cvinced by note or bond will
operate as security for the same continuing
debt though the evidence Of it be changed
by renewal or othcrwiscW. But in this
case it is the security itself which has been
changed, and not the evidence of the debt.
The deed Of December s, 1866, was cX-
ecutcd, us it seems, in substitution for that
of August, which thcreupon ceased to
have any validity or effect.
The only question now to be deter
mined is. therefore, whether or not the deed
of December created Il lien upon the pro-
pcrty described in it, which the assignee
of the bankrupt must satisfy before apply
in. any of its proceeds to the claims of the
general creditors. And it is to he observed
that the deed is not condemned by the 35th
section of the bankrupt act, which avoids
all assignments and other modes of prefer.
cncc made or attempted by insolvents, or
persons in contemplation of insolvency,
within four months before the filing of the
petition in bankruptcy, or in case the per-
son to be benefited has notice of the intent
within six months before such filing. The
deed in question was not made within
either limit of time. 1t need not, therefore,
be here considered whether either period
could begin to run Till after the passage OF
the act. If the deed is TO hc treated rs void
or imperative as against the assignee by
operation Of the act il must hc because OF
the effect of that clause of The 14th section
which provides "tlrit all The property con-
ycycd ny the bankrupt in fraud OF his crcdi-
tors " "shall in virtue of the adjudication
OF bankruptcy and the appointment of the
assignee bc ut once vested i'll such as
signec."
We do not doubt that the assignee takes
the property in the same plight in which it
WAS held by the bankrupt when his petition
WAS tilcd(3), subject to such liens or inc,nl-
branccs us would affect it if no adjudication
in bankruptcy had taken place but it is to
bc remembered that the assignee represents
the rights of creditors as well as the right
of the bankrupt; and that any lien or incum-
brancc which would be void for fraud as
against creditors if no petition had been
filed or assignee appointed will be equally
void as against the general creditors repre-
scntcd by the aSsignee(3).
This is what the act means when it vests
in the assignee call property conveyed in
fraud of creditors" 1t does not make any
conveyance or incumbrance fraudulent. 1t
simply clothes the assignee with the entire
title notwithstanding such conveyance or
incumbrancc, and makes it his duty to III
yoke the proper jurisdiction to annul the
fraudulent proceedings.
And it may be remarked further that
except to this extent the bankrupt act has
no influence upon this case SO far as the
deed of trust is concerned.
Much was said in argument concerning
the effect Of the record OF this deed upon
the I'd of March, 1867 and it was strenu-
the effect of the act which purports to have
been approved on that day. But we en-
tirely concur with MIR. Justice Story in
thinking that where the question is rs to
effect OF Il proceeding instituted on the
same day on which an act affecting the va
lidity Of such proceeding was passed the
precise time ut which the act became law
may be properly inquired into (D. And in
this we think ourselves warranted also by
the reasoning of the Supreme Court (j).
Now, it is in proof that the deed Of trust
was recorded about 2. Nj. on the I'd day
OF March, 1861 and it appears from the
Senate journal of the session during which
the act was passed that the day denomi-
mated the I'd day of March in the journal,
and in the approval of the statute by tho
President, consisted in fact of Saturday the
second day of March, of Sunday the third,
and of Monday the fourth until noon and
it appears further that the bill which after
wards became the bankrupt law was not
enrolled and delivered to the proper COM
mittce, to be presented to the President for
his signature, until after the recess, which
ended ut 7.30 2. NJ. on Sunday, and was not
reported to the Senate Us actually signed by
the President until after $40 A. NJ. on Mon
day (6.
1t cannot be doubted, then, that the deed
of trust was in fact recorded nearly two
days before the bankrupt bill became a law :;
and we think ourselves not only warranted
on general principles, but bound by the
Constitution, to notice the fact thus appear
ing upon the public records.
1t may well be questioned, indeed,
whether, if the act had been approved be-
fore the recording of the deed, the effect of
the latter would have been altered. Moth
ing in the thirty-fitth section touches the
deed; and nothing in any other except the
louItceutn. II uiay oc, anu VIC tnlnk III Is,
true that if the deed had remained unre-
corded when the petition in bankruptcy
was filed the title of the assignee would
have prevailed against any claim under the
deed, for the assignee represents the cred-
tors, and the statute OF Virginia expressly
declares "any decd Of trust void as to
creditors" until and except from the time
it is duly admitted to record. 1t is not an
construction of the bankrupt
act, as we think, which regards it as vesting
in the assignee for the benefit of creditors in
general the estate of the bankrupt dis