Page:Federal Reporter, 1st Series, Volume 2.djvu/498

 "ORAMPTON V. JERKOWSKI. 491 �estate. This bill is brought to set aside the conveyance of the goods, or of Flack's interest in them, to the defendant. Upon the evidence and the circumstances shown it is quite clear that the sale and conveyance were made to give the defendant a preference over other creditors, and to prevent the property from coming to the assignee in bankruptcy, if there should be one, as there has been, and that the defendant had reasonable cause to believe, and did believe, and know that Flack was insolvent, and that the purpose of making the sale and conveyance was as has been stated. Upon these facta the transfer, so far as it operated as sueh upon property to which the defendant had not the right before, was, under the provisions of the bankrupt law, void as to the plaintiff. �Much has been said about the effect of a mortgage upon Personal property which the mortgàgee has, by the terms of the mortgage, a right to sell ; and upon after-aequired prop- erty which the parties, by the terms of the mortgage, attempt to cover by it ; but it does not seem to be necessary to consider such questions here. There has been no mortgage or attempt to mortgage any of this property. The rights of the defend- ant depend upon the title he retained; not upon any title he acquired by mortgage from Flack. He sold to Flack, reserv- ing the title till payment. The question is as to the extent of that reservation. He reserved the title to the two-thirds which he sold ; the other third was already Flack's, and the title to that was not affected, nor attempted to be affected. His only right to Flack's third of that property is what he undertook to get by the transaction which the law makes null as to the orator, so as to give him the right to the property or its value, so far as it was Flack's. �Upon this view there is no diificulty about the rights of the parties in respect to property on hand at the time Flack bought ont the defendant. One-third of that property, or the value of one-third, belongs to the orator as assignee; the other two-thirds the defendant had a right to by virtue of his lien. The defendant took the whole away and disposed of it^ and thereby has become liable to accoùnt to the orator foi one-third of its value. ����