Page:North Dakota Reports (vol. 48).pdf/859

 Appeal and error — appellant may not complain of failure to make findings on alleged cause of action, not separately alleged and not supported by evidence.

3. For reasons stated in the opinion, it is held, that the trial court did not commit error in its findings and conclusions.

Action in District court, Morton county, Pugh, J. Plaintiff has ap- pealed from a judgment and has demanded a trial de novo.

Affirmed.

Norton & Kelsch, for appellant.

“The law provides that in order that a payment shall be voidable as a preference, it is necessary that a creditor should have been insolvent at the time it was made.” 7 C. J. Bankruptcy, p. 150, § 247, and authorities cited.

“The Courts have held that the petition filed is competent evidence to prove the insolvency of the bankrupt at any time within the four months to the filing thereof.” Utah Credit Association v. Boyle Furniture Co. 26 Am. Bank. Rep. 867.

Newton, Dullam & Young, for respondents.

“To establish a voidable preference or a fraudulent conveyance it is necessary that the debtor shall have transferred to a creditor some portion of his own property. This is elementary of course, and is laid down in § 266, 7 C. J. 165 cited by plaintiff’s counsel.” Newport Nat’l Bank v. National Herkimer County Bank, 255 U. S. 178, 56 L. ed. 1042; Goode v. Elwood Lodge, 160 Ind. 251, 66 N. E. 742; Aiello v. Crampton, 120 C. C. A. 189, 201 Fed. 891.

In the last case the following is quoted with approval:

“The one thing absolutely essential to a preference is that the bankrupt transfers some portion of his property to the creditor. If the creditor received none of the bankrupt’s property there is no preference.”

The question arises: What constitutes reasonable cause to believe that a preference would be effected? It must be positive evidence. Language of the same import has been most clearly discussed in Grant v. National Bank, 97 U. S. 80, 81, 24 L. ed. 971.