Page:North Dakota Reports (vol. 48).pdf/860

 Whether such ‘reasonable cause to believe’ existed is a question of fact and the burden of proof is upon the trustee. Pyle v. Texas Transportation & Terminal Co., 238 U. S. 90; 59 L. ed. 1215.

There must be an actual intent to hinder, delay and defraud unlawfully and not merely an intent to prevent from collecting claims. Collier Bankruptcy, 8 ed. p. 776; Coder v. Arts, 82 C. C, A. 91-95.

And in Sargent v. Blake, 87 C. C. A. 213, 217, Judge Sanborn says:

“It is every intent to hinder, delay and defraud creditors unlawfully only, not every intent to hinder or delay them in collecting or prevent them from collecting their claims, that avails to avoid a transfer under that section.”

, J. On January 23, 1918, Max Schultze filed a voluntary petition in bankruptcy. Prior thereto, on October 23, 1917, he and one Goeschel had made a written agreement, which provides that the balance due upon the purchase price of two sections of land in Montana, namely, $2,050, should be deposited in the First National Bank of New Salem, now reorganized as the defendant bank, that $400 out of such deposit should be paid to one Pierson, and the remainder to the intervener herein dependent upon the determination of litigation, then pending in Montana, concerning the lands. The First National Bank of New Salem accepted the terms of the deposit; the amount of such deposit was paid by Goeschel into the bank. The plaintiff is the trustee ot the bankrupt’s estate. He instituted this action against the depositary bank. His complaint alleges that such deposit constitutes a preference under the terms of the Bankruptcy Act (U. S. Comp. St. §§ 9585—9656), and was made for the purposes of hindering, delaying, and defrauding the bankrupt’s creditors. The trustee seeks to recover the amount of the deposit. The defendant, in its answer, requests permission to pay the money into court for disposition under the court's order. The parties stipulated that the Farmers’ & Merchants’ State Bank might intervene and defend in this action. For its complaint in intervention the intervener asserts that the deposit so made was not the property of the bankrupt, but that of his son. It denies the allegations of the complaint concerning the creation of a preference and a deposit made to defraud creditors. The action was tried to the court without a jury. The