Page:Federal Reporter, 1st Series, Volume 2.djvu/187

 180 FEDERAL REPORTER. �or a mortgage of the property. As already stated, the bank has not proceeded upon the assumption that there was a sale of the property, but only that it had a lien for the money loaned. There was no pledge of the property, beoause the possession was not with the pledgee. Possession, actual or constructive, is in general indispensable to the validity of a pledge as against creditors. Neither was there any valid mortgage of the property, because there was no possession ia - the mortgagee, nor was there, in f act, any written mortgage. If the receipts, and the circumstances connected with them, constituted a mortgage, then it was not recorded, as required by the statute of Indiana, Under the facts, I cannot regard this as anything more than a security given by the bankrupts to the bank for the loan that was made. It therefore was in the nature of a chattel mortgage, and, for the reasons al- ready stated, as sueh it was invalid under the statute. IJn- doubtedly this was a valid contract as between the parties, and it is claimed it was therefore valid as against the cred- itors of the bankrupts, because the assignee, it is insisted, «an be in no better position than the bankrupts themselves, he simply being the representative of the bankrupts, and standing as they stood in relation to their rights and equities. But that I do not understand to be the true rule in cases of this kind. The assignee represents ail the creditors of the bankrupts. He occupies as sueh a different position from that of the bankrupts themselves. This has always been the rule established in this circuit, and I think is the better rule. The reasons for it bave been given In re Gurney, 7 Biss. 414. They are also stated by Mr. Justice Strong in Miller v. Jones, 15 B. Eeg. 150. The same rule is also laid down in the case of Allen V. Massey, 17 Wall. 351. If it once be admitted that the contract which is the subject of eontroversy is fraudulent as to creditors, then, by the express provision of the bankrupt law, it is competent for the assignee to attack it, and to cause it to be abrogated for the beneflt of creditors. I think that the assignee has the right of a judgment crediter, where the mortgage or the pledge is invalid in consequence of wanting ����