Stockstill v. Brooks

Smith, C. J., delivered the opinion of the court. This is an action of replevin in which the appellant, a trustee in bankruptcy, seeks to recover from the appellee certain personal property claimed by him as a part of the bankrupt’s estate. The bankrupt, before he was adjudged such, executed and delivered .to the appellee, his wife, for a valuable consideration, a bill of sale to the property here in question, but it was not filed for record until some time after the appellant’s appointment as trustee of the bankrupt’s estate. *695 When the plaintiff rested his case in the court below, the evidence was excluded at the request of the appellee, and a directed verdict was entered for her, and, from a judgment in accordance therewith, the appellant has brought the case to this court. The appellant relies on section 2522, Code of 1906. (section 2056, Hemingway’s Code), which provides that: “A transfer or conveyance of goods and chattels, or lands, or any lease of lands, between husband and wife, shall not be valid as against any third person, unless the transfer or conveyance be in writing' and acknowledged and filed for record as a mortgage or deed of trust is required to be; and possession of the property shall not be equivalent to filing the writing for record, but, to affect third persons, the writing must be filed for record. ’ ’ The appellees’ main contention is based on the holding of this court in Green v. Weems, 38 So. 551, 85 Miss. 566, that “when the ‘third party’ referred to in” section 2522, Code of 1906 (section 2056, Hemingway’s Code), “is a creditor, that section means that he must be a lien creditor,” and seems to be that the appellant is not such a creditor and does not as trustee of the bankrupt’s estate represent any such. There is.no merit in this contention. The National Bankruptcy Law (U. S. Comp. St. sections 9585-9656) passes to the trustee all “property which prior to the filing'; of the petition he (the bankrupt) could by any means have transferred, or which migjit have been levied upon and sold under judicial process against him.” Collier on Bankruptcy (13 Ed.), 1657. The property here in question meets both of these conditions, for, had it been transferred by the bankrupt or levied upon and sold under judicial process against him, the person to whom it was transferred or sold would have obtained a valid title thereto, for a purchaser is one of the “third persons” for whose benefit the statute was enacted. Reversed and remanded.