602
FEDERAL REPORTER.
The transaction, then, seems to me to be clearly this, and nothing more 'or less: Plaintiff had the cattle for sale on the Kansas City market at $42 per head, cash. Moad wanted to buy them on at that price. Plaintiff refused to sell them to him on credit; but, on his statement that he wanted to buy cattle to feed because he had a large supply of feeding material on hand, proposed to let him have the cattle to feed, upon a feeding contract in which plaintiff should have the right to market them, and out of this proposal grew the written contract now in question. I have no doubt that the true intent of the parties is expressed by its terms; that it was intended to be, as it purports to be, a feeding contract, in which Moad became a. mere bailee of the steers in question for the purpose of feeding or caring for them, and that his compensation for the feeding and care was to be what the steere should sell for over the stipulated price per head; that is, Moad was to have the profit on feeding the cattle above 12 per cent. Moad did not understand from the contract itself, nor from the negotiations that led up to the contract, nor from what, took place afterwards, that he was the purchaser of the cattle, and had the right to dispose of or sell them. It is, however, urged that, under the laws of Missouri where ,the the legal effect of the contract was made and was to be contract was to clothe Moad with the apparent ownership; so that, as between him and those with whom he dealt in regard to the cattle, he is to be deemed the lawful owner, as the contract showing his special or. conditional title was not properly recorded. Section 250'7, Rev. Code Mo., seems to be the only express provision of the law of that state upon this subject. It -declares that "in all cases where any personal property shall be sold to any person, to be paid for in whole or in part in installments, or shall be leased, rented, hired, or delivered to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring, or receiving the same, whenever the amount paid shall be a certain sum, or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer, or deliverer of the same, until such sum, or the value of such property, or any part thereof, shall have been paid, such condition-in regard to the title so remaining until such payment-shall be void as to all subsequent purchasers in good faith, and creditors, unless such condition shall he evidenced by writing executed, acknowledged, and recorded as provided in cases of mortgages of personal property." . I do not find that this stl:lotute, as far as it is applicable to the facts of this case, has ever heen construed by the supreme court of Missouri. The claim on the part of defendant is that Cox is a bonafide purchaser of the cattle, because Moad was in possession, and there was no contract or instrument of record showing that his title was conditional; but the supreme court. of Missouri, in Aubuchon v. Bender, 44 Mo. 560, in construing the laws of that state in regard to the rec-
WESTERN U.ND & CATTLE CO. V. PLUMB.
608
ord of deeds and contracts pertaining to real estate, held that a purchaser who had parted with nothing, but had merely taken So conveyance of real estate in payment of an old debt, was not So bona fidI purchaser: "At common law there was no obligation to put upon record a conveyance affecting the title of land; but the duty of registration is now imposed upon the grantee, or the person to whom, or for whose USe, the conveyance or covenant is made, and, as in all other cases where a duty is imposed, he who neglects it should suffer the consequences. The object of the requirement is to compel an exhibit of title to facilitate transfers, but principally to guard purchasers against imposition; and hence, if the prior deed is not recorded, a snbsequent buyer for good consideration, without notice, will be protected. This protection, always thrown around an innocent purchaser, and to whick our statute also expressly entitles him, is founded on the broadest equity. He receives it, not because the pfior deed is invalid in itself,-the duty of recording it is not enforced by any such penalty,-but because justice will not suffer a person who omits a plain duty to set up a claim against one who had been led by that omission to invest his money in what he supposed his vendor had a right to sell; bnt, to entitle him to such protl\ction, he must have parted with something of value, otherwise he is not injured; and such is the spirit, if not the letter, of the statute, and such has been its uniform interpretation." .In the light of this decision, and of many more of the same purport by the federal and the state courts, I am of opinion that the provisions of section 2507 which protect bona, fide purchasers and creditors who deal with an apparent owner in possession of personal property, only apply to and protect a purchaser who pays a present consideration, or a creditor who trusts or gives credit to such person while in possession. Neither Mr. Cox nor the bank paid any present consideration, nor gave Moad any credit upon the faith of his being the owner of these cattle. On the contrary, there is much in the record to justify the conclusion that Mr. Cox knew that Moad was not the ownAr of these cattle. The fact that, after he had obtained from Moad the chattel mortgage of February 27th on those cattle, he did not put this mortgage upon record. is to my mind a very suggestive circumstance in support of the view that he relied wholly upon the advantage or hold he had upon Moad by reason of Moad's having Bold the steers covered by his former mortgages; and the dealings between Cox and Moad in regard to these cattle satisfy me that Moad was governed by his fears of a prosecution, rather than by any sense of obligation. J think, too, there can be no doubt that Plumb, to whom Moad delivered the cattle as agent of Cox, knew that Moad was fraudulently and surreptitiously removing the cattle. It is true, he did not say it in so many words; but there was that in his manner of testifying which would justify a jury in inferring much more from what he did not say than from what he said. He was on the watch for the cattle when Moad drove them into Breckinridge; bought 56 head of them without weighing, and in such haste as to be of itself a badge of fraud; and his testimony, as to his ul1scrupulous practices in starving the
604
cattle for water," and then allowing them to drink heavily just before they were to be weighed, stamps the character of the man. There can be no doubt of Moad's fraudulent knowledge and fraudulent participation in the transaction. He kept the cattle 19 days beyond the term of his contract, pretending that he preferred to so keep them rather than to have them sold at the then current price, and in the mean time resorted to expedients to get Tunnyhill, the plaintiff's em· ploye who was at the farm. to leave there; arid finally, when he did lea ve, on the 18th, for a two-days absence at Kansas City, he made hot haste to get the cattle shipped before Tunnyhill's return. He. knew he had no right to sell them, and the inference is conclusive from the ci.rcumstances that he dared not move them while Tunnyhill was at the farm; and yet Moad was made the agent of Mr. Cox and the bank to ship the cattle for them. Acting through agents like Moad and Plumb, and having paid no present consideration, nor parted with a dollar or dollar's worth of value for these cattle, Mr. Cox can· not be deemed a bona fide purchaser or creditor for value. I do not think the case comes within, or is affected by, the laws of Missouri in relation to recording chattel mortgages or conditional titles to personal property, as those statutes were only intended to protect those who deal in good faith with a pert>on in possession of such property as the apparent owner. The issue is found for the plaintiff.
In re
BATES.
(Di.vtrict (Jourt, S. D. New York. 1. BANKRUPTCY -VACATING DISCHARGE EXECUTORS.
April 30, 1886.' PETITION BY
KNOWLEDGE OF FACTS -
A discharge in bankruptcy not being voidable for causes previously known to the creditor. no order to take testimony should be made upon a petition to vacate the discharge, unless the petition shows affirmatively reasonable cause to believe that the creditor was ignorant of the ground specified when the discharge was granted. The knowledge referred to in the statute is the knowledge of the creditor, not of his executors Specifications in this case allowed as to matters alleA'ed to have occurred within a few davs of the discharge; disallowed as respects other charges pending a long time previous.
2.
SAME-SPECIFICATIONS ALLOWED.
Petition to Annul, Discharge. T. C. Cronin, for creditors. W. B. Harison, for bankrupt. BROWN, J. The bankrupt having obtained his discharge in this court by order granted on the twentieth of September, 1884, after
I!J RE BATES.
605
proceedings had been pending nearly six years, the petitioners, as executors of Alonzo Flack; file a petition, under section 5120 of the Revised Statutes, to annul the discharge, setting forth various specifications as grounds therefor. Flack was named in the bankrupt's schedule as a creditor, but he did not prove his debt, and died in Mai;dl, iS85, some six months after the bankrupt's discharge. ·The petitioll having qualified as executors, in their petition sworn to rs, on the twenty-second day of December, 1885, after setting forth the grounds for avoiding the discharge, state that "they had not, nor had the said Alonzo Flack, to the best knowledge and belief of your petitioners, any knowledge' of the matters and facts stated in the petition as the grounds of the application until after the discharge of the bankrupt was granted, to-wit, within a few days prior to the date hereof." Such a discharge cannot be vacated unless the court is satisfied that the creditor, or his representatives, had no knowledge of the objections at the time the discharge was granted. No order of reference should, therefore, be made, unless it appears upon the petition that at least there was reasonable cause to believe that the creditor was ignorant of the grounds raised for avoiding the discharge. It would be unjust to initiate an expensive and harassing proceeding unless the petition presented a reasonable prima facie case in respect to the creditor's ignorance as well as in other particulars. In this case the creditor did not prove his debt, and is now dead. The fact that his representatives had no knowledge of the grounds now raised is immaterial. The only question is whether the creditor !lad knowledge. The first two specifications relate to matters happening within a few days prior to the bankrupt's discharge; and there is a prima facie presumption, perhaps, that he was ignorant of those matters. No such presumption can be indulged in reference to the third, fourth, and fifth specifications, which are the same as were pending before the register for several years prior to the discharge. The mere averment by his executors that he had no knowledge, to the best of their belief, is not sufficient to put the bankrupt again upon trial in reference to those same matters so long pending. The petitioners may take an order of reference to the register to take and report the evidence upon the first two specifications only. The other three are disallowed and stricken out.
G06
FEDERAL REPORTEB.
UNITED S'rATEB
v.
LEATHERBERRY.
(District Go'Urt, S. D. Mississippi. PuBLIC LANDS - PROTECTION OF TIMBER SECTION 2461, REV. ST·· CONSTRUED.
May 26, 1886.>
It is a violation of section 2461, Rev. St.· to box: and chip trees, growing OD the public domain, for turpentine purposes.
BOXING TREES FOB .
Tt7Ju>JmTIl'l.-
Motion to Exclude Evidence. J. B. Harris, U. S. Atty., for the United States.
Luke Lea, for defendant. HILL, J. It is admitted in this case that the trees were not severed or felled, and that the only cutting was what is known as boxing and chipping the trees, in order to extract the gum or sap, for turpentine or resin. The counsel for the defendant moves the court to exclude the evidence of the plaintiff, as it does not make out an offense against the law. I am, however, of the opinion that the motion must be overruled. The object and purpose of the statute (section 2461) is to protect the public timber. This purpose would, in 80 great measure, be defeated should the view of defendant's counsel prevail. The language of the statute is, "cut, or procure to be cut, or aid or assist or be employed in cutting," etc., "with intent to export, dispose of, use, or employ the sama in any manner whatsoever other than for the use of the navy of the United States." Certainly cutting the timber in order to extract its gum and sap for one's private use is cutting it with intent to use and employ it in So manner other than for the navy of the United States. Motion overruled.
In t.
'1'6 WOLF
and another.
(lJistrict Gourt, W; lJ. Arkansas. May Term, 1886.) CRIMINAL LAW-WARRANT FOR REMOVAL-TRIAL, WHERE HAD.
The judge of a United States court, when acting on an application for a warrant for the removal of a person charged with crime, from one district to another for trial. is to exercise a sound judicial discretion. He must look to the question of the jurisdiction of the court sitting where he is asked to remove the prisoner, to try the case. To determine where the trial is to be had, he may look into the whole case to see that the court where the party is to be removed has jurisdiction over the place, the person, and the subject-matter. There may be a want of subject-matter, either because there is no law making the act charged a crime, or because the act is not properly charged. or that the party charged has not done the act.
2. SAME-WANT OF JURISDICTION.
8.
S.UIE-INDICTMENT.
If the indictment contains allegations sufficient to show a crime has been committed by the party charged, it is the practice of the federal jUdges to
