Page:Federal Reporter, 1st Series, Volume 6.djvu/69

 DOUGLASS V. VOGBLER. 67 �that promise related to real estate, and being in paroi arxcl no part performance, it could not have been enforced in a court of equity; but this related only to personal property, and would most certainly have been enforced against Taxis, otherwise it would have been a fraud upon Vogeler. �The second question grows out of the fact that the balance of $1,500 due on the original loan of $3,000, and for which Vogeler held an unrecorded ohattel mortgage as security, was a part of the consideration for the mortgage now in contro- versy. If the unrecorded mortgage was a valid lien, it is clear that to that extent it would be simply an exchange of securities, and it is well settled that an exohange of securities is not in violation of the bankrupt law. Cook v. Tullis, 18 Wall. 340; Clarkev. Iselin, 21 WsAl. 360; Burnkisely. Turner, 22 Wall. 170; Sawi/er v. Turpin, 91 U. S. 114. But it is claimed by the learned eounsel for the assignee that under the Btatutes of Ohio the first mortgage, not having been re- corded, was void as against creditors, and therefore void as against the assignee^ �This presents a very important question. As between the mortgagor and mortgagee the mortgage was valid without record. It is only as against creditors that it is void, Does the assignee occupy the position of a crediter, and is it void as against him ? �In Yeatman v. Savings Institution, 95 U. S. 766, Mr. Justice Harlan says: "The established rule is that, exoept in cases of attachments against the property of the bankrupt within a prescribed time preceding the commencement of proceed- ings in bankruptcy, and except in cases where the disposir tion of the property by the bankrupt is declared by law tobe fraudulent and void, the assignee takes the title subject to ail equities, liens, or encumbrances, whether created by oper- ation of law, or by the act of the bankrupt, which existed against the property in the hands of the bankrupt. * * * He takes the property in the same 'plight and condition' that the bankrupt held it." But in Casey v. Cavarack, 96 U. S. 489, it is claimed that the supreme co^rt has extendedthe ��� �