In re Corwin Mfg. Co.

DODGE, District Judge. This petition was filed September 3, 1909. It is brought by one alleged creditor only, and alleges that the company’s creditors are less than 12 in number. The petitioning creditor is Patrick J. Woods, tax collector of the town of Peabody, [979] Mass. The claim he states is for taxes assessed on the company’s real and personal property at Peabody for 1908 and 1909. The act of bankruptcy alleged is the recording of a mortgage in the office of the town clerk of Peabody on July 31, 1909. The mortgage referred to is a mortgage of all the company’s personal property to the Old Colony Trust Company, dated August 20, 1901. It is alleged that the recording of this mortgage amounted to a transfer of the property with intent to prefer the Old Colony Trust Company as a creditor. The answer of the company, among other things, denies that the petitioner is a creditor capable of maintaining the petition and denies the commission of the alleged act of bankruptcy. Under a reference to ascertain and report the facts, the referee has found in favor of the company upon both the questions thus raised. There appears to have been no dispute as to the facts. The referee held that though the petitioner is tax collector, and though taxes are due from the bankrupt to the amount set forth, yet the petitioner is not shown to have been a creditor entitled to maintain an involuntary petition, because there is no allegation that at the date of the petition the taxes had remained unpaid for three months after being committed to the collector. Without this, the collector has no provable claim against the bankrupt, because he cannot maintain an action. This is dear upon the Massachusetts statute and decisions which the referee has cited. There are no rights upon which he can rely in this case, except such as the Massachusetts statutes give him. The referee also held that, even if the collector could maintain the petition, the facts show that the recording of the mortgage alleged was not a preference, and not an act of bankruptcy. I think this conclusion also right, for the reasons stated in the report. The petition is to be dismissed.