count, and pay the moneys received therefor; that complainant has $1,490 of such money, which should be ordered to be paid over to defendant. The defendant claims the benefit of a demurrer the same as though he had demurred generally and specially.

A general replication was filed, and hearing in open court demanded. The cause heard April 30, 1886, and a decree made February 21, 1887. granting the relief prayed for by complainant. Defendant appeals.

The assignee of an insolvent debtor, in the absence of fraud in fact, and in the absence of statute regulations, takes only the debtor's rights; and consequently he is affected with claims, liens, and equities which exist as against the debtor, were he asserting claims to the property. It was long ago held in England that assignees in bankruptcy take subject to whatever equity the bankrupt is liable to. Mitford v. Mitford, 9 Ves. Jr. 87; Sherrington v. Yates, 12 Mees. & W. 855; Brown v. Heathcote, 1 Atk. 160, 162. Such is the prevailing doctrine in this country. Winsor v. McLellan, 2 Story, 492; Fletcher v. Morey, id. 555; Mitchell v. Winslow, id. 630; In re Griffiths, 1 Low. Dec. 431; In re Dow, 6 N. B. R. 10; Coggeshall v. Potter, 1 Holmes, 75; Johnson v. Patterson, 2 Woods, 443; Goddard v. Weaver, 1 id. 257, 260; In re Collins, 12 N. B. R. 379; Platt v. Preston, 3 Fed. Rep. 394; Yeatman v. Savings Inst., 95 U. S. 764; Adams v. Collier, 122 id. 382. It is held in this State that the assignee for the benefit of creditors is not a purchaser in good faith. The statute relative to common-law assignments does not place the assignee upon any better footing than the creditors he represents.

There is no question in this case, but that the chattel mortgage executed by John J. Ryan & Co. was given in good faith, to secure an honest debt, and is valid between the parties. The important question is whether a chattel mortgage not filed pursuant to section 6193, How. St., and valid between the parties, is equally valid and effective as against the assignee for the benefit of creditors who became such prior to the date of the mortgage. In Stewart v. Platt, 101 U. S. 731, 739, the Supreme Court of the United States, in passing upon this question, say: Although the chattel mortgages, by reason of the failure to file them in the proper place, were void as against judgment creditors, they are valid and effective as between the mortgagor and the mortgagee. Lane v. Lutz, 40 N. Y. 213; Westcott v. Gunn, 4 Duer, 107; Smith v. Acker, 23 Wend. 653. Suppose the mortgagors had not been adjudged bankrupts, and there had been no creditors, subsequent purchasers, or mortgagees to complain, as as they alone might, of the failure to file the mortgages in the towns where the mortgagors respectively resided. It cannot be doubted that Stewart, in that event, could have enforced a lien upon the mortgaged property in satisfaction for his claim for rent. The assignee took the property subject to such equities, liens, or incumbrances as would have affected it had no adjudication in bankruptcy been made. While the rights of the creditors, when executions preceded the bankruptcy, were properly adjudged to be superior to any which passed to the assignee by operation of law, the balance of the fund, after satisfying those executious, belonged to the mortgagee, and not to the assignee for the purpose of the trust. The latter, representing the general creditors, cannot dispute such claim, since, had there been no adjudication, it could not have been disputed by the mortgagors. The assignee can assert, in behalf of the general creditors, no claim to the proceeds of the sale of that property which the bankrupts themselves could not have asserted in a contest exclusively between themselves and their mortgagee." The question arose, but was not decided, in Putnam v. Reynolds, 44 Mich. 113, the

mortgage being held void as to creditors: it appearing in the record of that case, but not stated in the opinion, that between the date of the mortgage and the date of the filing, there were creditors as to whom the mortgage would be void.

The assignee is not a creditor, and as he does not stand in the position of a bona fide purchaser, it is difficult to see how he occupies any vantage ground over his grantor, except as he represents the rights of creditors who have become such while the mortgage was kept off from the files. He is merely a trustee to collect and convert the assets, and distribute them among the creditors. His powers and duties arise partly from the common law, and partly from the statute regulating and enforcing assignments for the benefit of creditors. Section 3 of that statute provides; "Every such assignment shall confer upon such assignee the right to recover all property, or right or equities in property which might be reached or recovered by any of the creditors of such assignor." Under this section he would doubtless be authorized to recover property conveyed by the assignor in fraud of his creditors, and perhaps equitable interests of things in action secreted or conveyed by the assignor in fraud of his creditors. But when the unrecorded mortgage is bona fide, and made without fraudulent intent, it is valid as against all creditors except those who have become such while it remained unrecorded. The other creditors could not reach it, and consequently this section of the statute would not empower the assignee to recover the property conveyed by it.

The difficulty in obtaining a clear perception of the rights of the assignee has arisen in the mistaken view that an unrecorded mortgage is absolutely void as to all creditors. It must be confessed that the language used in many decisions has led to this conclusion. In most cases however if not in all, such language has been applied to those cases where the creditors referred to were those who became such while the mort-gage was unrecorded. Thus, in Thompson v. Van Vechten, 27 N. Y., at page 582, Chief Justice Denio says: "But it was the apparent, and I think the real object of the act, to prevent the setting up of secret mortgages against persons who might deal with the mortgagor, on the faith that his property was not thus incumbered. It is true, the mortgage cannot be legally questioned until the creditor clothes himself with a judgment and execution, or with some legal process against the property; for creditors cannot interfere with the property of their debtors without process. But when they present themselves with their process, they may, I think, go back to the origin of their debt, and show, if they can, that when it was contracted, the incumbrance with which they are now confronted existed, and was kept secret by being withheld from the proper office." This case is cited in brief of counsel as authority to show that an unfiled mortgage is absolutely void. A careful reading of the case would have shown the limitation which when the facts are disclosed govern such cases. The distinction was noticed, and the principle again stated in Parshall v. Eggert, 54 N. Y. 18, 22. It was there said: "If the instrument under which the plaintiffs claimed were a chattel mortgage, it would be void as against the right of Hunter, the creditor, whom the defendant, the sheriff, represents, inasmuch as the instrument had not been filed when the debt of Hunter was created. For this position the case of Thompson v. Van Vechten, 27 N. Y. 581, is a direct authority. It was there held that the time when the creditor became such fixed the rights of the parties; that a mortgage not then filed was void as to him, although he should not then be in a position to at once attack its validity." The distinction was again clearly made, and the doctrine ap

plied, in the case of Stewart v. Beale, 7 Hun. 405, and affirmed in 68 N. Y. 629, upon the opinion written in 7 Hun, 405.

The case of Wilson v. Esten, 14 R. I. 621, is in many of its features a parallel case to the one under consideration. There a mortgage was given in good faith, to secure a loan of money to enable the mortgagor to start in business. It was dated May 5, 1883, but was not recorded. The statute declared that no mortgage of personal property hereafter made shall be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to and retained by the mortgagee, or unless the said mortgage be recorded," etc. On January 14, 1884, the mortgagor executed a voluntary assignment for the benefit of his creditors. The assignee went on and sold the property covered by the mortgage, and paid the money received therefor into the registry of the court, where it was claimed by the general creditors, and also by the mortgagee. The general creditors claimed that the neglect to have the mortgage recorded operated as a fraud upon them, because in consequence of the neglect, they gave credit to the mortgagor which otherwise they would not have given, and therefore that they were entitled to the fund. The court found, from the testimony, that the neglect to record the mortgage was unintentional, and that the lien of the mortgage was not affected by the failure to place it upon record. The court said: "The creditors contend that they are entitled to the fund because the mortgage being unrecorded, is valid only between the parties to it. The creditors however show no right to the fund which they can enforce in this case, unless they are entitled to it under the assignment, and the question therefore is whether the assignee, as trustee for them, has acquired a right which is superior to the mortgage, or has simply succeeded to the right of his assignor, which is subject to it. There can be no doubt that ordinarly, where there is no statute to add to the effect of the assignment, a voluntary assignee succeeds simply to the rights of the assignor." And the court held, that as they had no statute in that State adding to the ordinary powers of a voluntary assignee, the mortgagor was entitled to the money, for the reason that the mortgage was good between the parties, and the assignee occupied no better position than his assignor.

In Shaw v. Glenn, 37 N. J. Eq. 32, the firm of James M. Shaw & Co, creditors of John Hillartin, took from him on October 17, 1882, a chattel mortgage to secure a debt of $375. Martin resided at Elizabeth, in Union county, but the mortgage was two days after its date, by mistake recorded in Essex county, where the goods were, and where they supposed the mortgagor resided. December 28, 1882, Martin executed a voluntary assignment to defendant Glenn, for the equal benefit of his creditors, under the assignment act. The assignee at once took possessiou of the goods then in the mortgagor's hands. Soon after that, the mortgagees discovered their mistake, and recorded their mortgage in Union county. The mortgage was given in good faith in all respects. The suit was brought to foreclose the chattel mortgage. The case is so clearly in point that I feel justified in quoting the opinion of the chancellor. He says: "The defendant, the assignee, insists that the mortgage is void as to him because it was not recorded in Union county, where the mortgagor resided when it was made, before the assignment to him was delivered. The act provides (P. L. 1881, p. 227), that any mortgage or conveyance intended to operate as a mortgage of goods and chattels, made after the approval of that act, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors

of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless recorded according to the directions of the act, which are that it be recorded in the clerk's or register's office of the county where the mortgagor resides, if he resides in this State, but if he does not reside in this State, then it is to be recorded in the clerk's or register's office of the county where the property is at the time of executing the mortgage. But the mortgage was clearly valid, as against the mortgagor, when he made the assignment, notwithstanding it had not been recorded according to law, Bank v. Sprague, 20 N. J. Eq. 13; and the assignee took his title to the property subject to the equities to which it was subject in the hands of his assignor. Such is the rule as to assignees in bankruptcy. Such an assignee is not bound by the fraudulent conveyance of his assignor, Pillsbury v. Kingon, 33 N. J. Eq. 287, but in cases unaffected by fraud, he is bound by the equities to which the property assigned was liable when it came to his hands from his assignor, Mitford v. Mitford. 9 Ves. 87; Winsor v. McLellan, 2 Story, 492; In re Gregg, 3 N. B. R. 131. And this rule has been repeatedly applied in mortgage cases like the present. In re Griffiths, 3 N. B. R. 179; Potter v. Coggeshall, 4 id. 19; Stewart v. Platt, 101 U. S. 731. The same just rule is on every principle obviously applicacable to assignees under the assignment act. The failure to record the mortgage does not render it invalid as against the defendant."

The rule laid down in this case does not conflict with that which treats the assignee as the representative of creditors for all purposes of attacking conveyances made in fraud of creditors. Pillsbury v. Kingon, 33 N. J. Eq. 287, lays down this rule, and supports it with satisfactory reasoning and upon authorities cited; also Sehaller v. Wright, 22 Rep. 401; 28 N. W. Rep. 460, where the Supreme Court of Iowa held the assignee of an insolvent estate represents the creditors, and that the title to property fraudulently conveyed vests in him.

Turning now to decided cases in our own State, we observe that many cases are decided merely reciting the language of the statute deelaring unfiled chattel mortgages void as to creditors, without stating whether the demands of the creditors existed before or after the date of the mortgage. Such are the cases of Hurd v. Brown, 37 Mich. 484; Haynes v. Leppig, 40 id. 602; Cooper v. Brock, 41 id. 480; Putnam v. Reynolds, 44 id. 113; Wallen v. Rossman, 45 id. 333.

Commencing with Feary v. Cummings, 41 Mich. 376, which precedes in date some of the cases cited above, the court on page 382, say: "If the mortgage was made to hinder, delay and defraud creditors, or inasmuch as the possession was not altered, if it was put ou file prior to plaintiffs becoming creditors, it was invalid as against them; the law being that those who become creditors while the mortgage is not filed are protected, and not merely those who obtain judgments or levy judgments before the filing. Still no one as a creditor at large can question the mortgage. He can only do that by means of some process or proceeding against the property.

In Waite v. Mathews, 50 Mich. 392; 15 N. W. Rep. 524, the mortgages were filed by mistake in the wrong township. The defendant was a United States marshal, and represented creditors whose debts were older than the mortgages. The chief controversy was upon the validity of the mortgages as against the creditors whom he represented. The court below held that the mortgages were absolutely void, as matter of law, for want of immediate possession. This court said: "The other question was substantially decided in Kohl v. Lynn, 34 Mich, 360, and Fearey v. Cummings, supra, where it was distinctly intimated that in order to

justify the application of the statute making mortgages, whether honest or not, absolutely void for want of filing or possession, some act must be done, or some detriment sustained, during the interval. As against all such rights, a mortgage without such possession or filing, is absolutely, and not merely presumptively void; while conveyances not by way of mortgage are only presumptively void, under such circumstances, (citing cases). The case of Watlen v. Rossman, 45 Mich. 333; 7 N. W. Rep. 901, where a different rule is claimed to have been given, was one where the debt was incurred subsequently to the date of the mortgage, as appears from the original record; the facts not being set out in the report. * * * It is to be remembered that filing in the proper office is equivalent, for saving purposes, to actual delivery of property; and this is often delayed by mistake as to the proper office, or by other causes involving no fraud. Rules so stringent as to destroy honest transactions by such omissions must have a reasonable application. The object of the statute is to prevent, and not to facilitate fraud; and such a construction as was have adopted below would not, in our opinion, tend to good. We do not mean to decide that creditors who have been actually damnified by reliance on a title being clear to postpone action may not be protected."

Talcott v. Crippen, 52 Mich. 633. The bill of sale in this cause, which was treated as a mortgage, was dated April 6, 1882, and was filed August 10, 1882. The property was attached August 11, 1882, to recover demands created between February 9 and August 3, 1882. Held, as to these creditors, the mortgage was void.

*

In Crippen v. Fletcher, 56 Mich. 386, the mortgage was dated May 9, 1884, and purposely not recorded until May 15, 1884, when the mortgagee took possession, and sold the goods mortgaged. He was garnished at the suit of creditors who had become such after the date and before the filing of the mortgage. On page 389, Mr. Justice Campbell, giving the opinion of the court, said: "We have heretofore held that a chattel mortgage, not seasonably filed, is void, and not merely presumptively void, against creditors whose rights interevene between the making and filing. * * When the debt is not incurred on the credit of an apparently clear title, which is in fact covered by a secret mortgage, the cases cited hold that there is no right to complain of a subsequent mortgage without taking some steps which put the creditor on a different footing than that of a quiescent party. But when a chattel mortgage exists, and is concealed, it is, under the statute void, for the reason that it produces a false appearance of entire solvency, when in fact a person known to have mortgaged his stock would not be as likely to get credit as one who had given no such security; and those who deal with such a debtor are liable to be defrauded by appearances. One who gives credit under such circumstances is necessarily exposed to that mischief, and the law has removed all questions of suspicion or notice by making chattel mortgages void, at all events, against creditors who deal with a debtor so situated. Such creditors are directly within the policy of the statute."

The language of the statute contains no qualifications as to the time the creditors become such. It does not say that the unfiled mortgage shall be void as to subsequent creditors, and this has led some courts to hold that it is void as to all creditors. But a qualification is plainly implied from the language of the whole section, considered with reference to the object of the law. It must be remembered that the filing is designed to take the place of the delivery of the property. The object of the law is to protect persons dealing upon credit with one who is in possession of personal

property as the ostensible owner, upon the reliance of such ownership, from secret conveyances by which he is enabled to obtain a fictitious credit to which he would not be entitled if the true situation were known. Until such secret conveyance is given, the law has no force. There is nothing for its provisions to operate upon, and the creditor has the protection of the ordinary remedies for the enforcement of his demands. These are not enlarged by the statute, and no new rights or remedies are conferred upon the creditor. To him it makes no difference whether the debtor sells mortgages, or gives away his property, either secretly or openly, unless it is done with intent to defraud him. His remedy to reach the property coveyed depends entirely upon the fraudulent character and intent with which the debtor has conveyed it away. As to him, the debtor may secure another person by delivering the property to him, followed by a continued change of possession; in which case he would not be likely to extend any further credit. But suppose, instead, his debtor gives a mortgage in good faith, to secure an honest debt, to another creditor, or for a present consideration, for a loan of money. There is nothing in the quality of these acts by which he is injured. There is no legal wrong done him. Nor is there any legal wrong done him if the mortgage is kept secret or unfiled, unless he has thereby been led to extend new credit or further time, or been led to abstain from taking action to collect his debt, in ignorance of the real situation. It would seem unreasonable that without extending any new credit, or otherwise suffering loss, on account of the mortgage being kept from the files, or being filed in a wrong place, he could be permitted to say that the mortgage is void as to him, and that he would attach the property, and deprive the owner of his security, simply because he had failed to comply with the law. He has not been led to do or to omit doing any thing, upon the strength of such noncompliance with the statute. And herein lies the difference between his case and the innocent purchaser or incumbrancer under the recording laws. These protect subsequent purchasers and incumbrancers in good faith, who have been led to rely upon the record title. To my mind, the reason why the word "subsequent was not inserted in the statute before the word "creditors" was to meet just that contingency where an existing creditor might suffer an injury by relying upon the apparent situation, and so be damnified by postponing action, or extending time of credit already given, or possibly in some other manner.

The complainant has not shown that he represents any creditor who is in a position to challenge the validity of defendant's mortgage or claim the benefit of the statute as avoiding it, because of its not having been filed seasonably. We must therefore deny him the relief which he asks. The answer prays affirmative relief, and defendant is entitled to it at our hands. The testimony shows that the property was sold by the consent of the defendant, and that he reserved his claim upon the land. The gross amount realized from the sale was $1,490. The testimony shows that it cost about ten per cent to dispose of it, and that the assignee guarantied the buggies on the sale, and many came back for repairs. The assignee paid out for such repairs $104.40. This amount, with the expense of sale, ($149) must be deducted from the $1,490, leaving $1,236.60, which complainant must pay to defendant as the net avails of such property.

The decree of the Circuit Court must be reversed, and a decree entered here in accordance with this opinion. The taxable costs of both parties will be paid by the assignee out of the other funds in his hands.

The other justices concurred.

REGISTER OF DEEDS-MANDAMUS-CLAIMS OF PRIVATE PARTIES TO COPY ENTIRE RECORDS.

SUPREME COURT OF KANSAS, OCT. 8, 1887.

CORMACK V. WOLCOTT.

The register of deeds will not be compelled by mandamus to permit any person to make copies of the entire records in his office, for the purpose of making a set of abstract books for private use or speculation.

ORIGI

RIGINAL proceedings in mandamus. This was an application to this court for a writ of mandamus to compel the register of deeds of Russell county, to permit the plaintiff to make a set of abstracts of the titles to real estate in that county; on which petition an alternative writ was by the court granted. The defendant filed his motion to quash the writ, for the reason that the facts therein stated were insufficient at law to entitle the plaintiff to recover the relief sought. The petition states, in substance, as follows: That the plaintiff was a resident of the county of Ottawa, and on or about the 1st of March, 1887, desired to become a resident of Russell county for the purpose of engaging in the business of abstracting the titles in that county; that on the 20th day of March, 1887, plaintiff employed A. W. Cormack to go to the city of Russell, in said county, to arrange with the defendant, the register of deeds of said county, to allow plaintiff to put an employee (J. T. Cormack) in said office for the purpose of doing a part of the necessary work in making out a set of abstract books of the titles of the real estate in said Russell county; that said defendant, as such register of deeds, refused to allow plaintiff's employee to go to work in the office, and make said examination of the records, and make copies thereof, as described by the plaintiff, for the purpose for which plaintiff desired said copies and information. The plaintiff further shows that for the purpose of making and completing the set of abstract books, it was necessary that the plaintiff and his employees examine and search the records and papers belonging to said office, and make copies thereof, and that plaintiff desired so to do at reasonable times, and in a proper manner.

Thompson & Midgely, for plaintiff.

H. L. Pestana and W. G. Eastland, for defendant. CLOGSTON, C. The defendant's motion to quash must be treated as a demurrer to the petition, and the only question is, was the plaintiff entitled to an examination of the records and papers in the office of register of deeds of Russell county, for the purpose of making a set of abstract books of the titles to the real estate in that county? The statute under which plaintiff claims the right to make this examination of the records in question is as follows: "Every county officer shall keep his office at the seat of justice of his county, and in the office provided by the county, if any such has been provided; and if there be none established, then at such place as shall be fixed by special provisions of law; or if there be no such provisions, then at such place as the board of county commissioners shall direct; and they shall each keep the same open during the usual business hours of each day (Sundays excepted); and all books and papers required to be in their offices shall be open for the examination of any person." Comp. Laws 1885, $211, p. 299. This statute also defines the duty of the register of deeds: "The register of deeds shall have custody of, and safely keep and preserve all the books, records, deeds, maps, and papers deposited or kept in his office." Comp. Laws 1885, § 90, p. 281.

Before the plaintiff cau maintain his claim in an

action of this kind he must show affirmatively that the right claimed, and which is denied by the defendant, is a clear legal right, and one of which there can be no doubts or exceptions. The writ of mandamus only lies before this kind of a right. A public officer can be compelled to do such acts as the law requires to be performed, and none other. The plaintiff claims that the records in the office of the register of deeds are public records, that every person has a right to inspect, examine, and copy, at all reasonable times, and in a proper way; and that the register cannot deny access to his office or books for such purpose to any person coming there at a proper time, and in an orderly manner; and that the register must transact the business of the office, and allow persons reasonable facilities to exercise this right in that office. On the other hand, the defendant insists that while the records are public records, and that all persons have a right to examine the records and books of that office at all reasonable times, yet this right is controlled to some extent by the objects for which the examination is made, or the use to be made of such information; and that as in this case, where the information is to be used for the purpose of private speculation and gain, solely for the benefit of plaintiff, for no public use or purpose, and not for the purpose of au examination of any title or interest of the plaintiff therein, and not as an attorney or agent of some person having an interest in lands, but solely for the purpose of selling said iuformation to others for compensation and speculation, the privilege will not be granted.

The question is an embarrassing one, and we are not free from doubt. At common law, parties had no vested rights in the examination of a record of title, or other public records, save by some interest in the land or subject of record. So no authorities at common law can throw any light upon the question; the practice of making abstract records being of more recent date. In some States the right has been recognized and regulated by law; in others, abstracts are made by permission of the register of deeds; but in this State no action of the Legislature has been had. Then under the provisions of the statute above quoted, the right of the plaintiff must be found, if at all.

The primary purpose of making and keeping a record of the titles to land is that the title and its history may be preserved and protected, so that the information there contained may be obtained by those who seek it. Without these records there would soon be that uncertainty in the title to real estate that would render it almost valueless, or involve its owner in endless litigation to protect it. Necessity then requires that these records shall be correctly made, and when so made to be safely and securely kept. The law has imposed this duty upon the register of deeds, and when any persons desire to inspect the same, that inspection must be under the immediate eye and observation of the register of deeds or his deputy. Otherwise that provision of the law that requires him to "safely keep" would impose a duty without the power to perform it. Then the right to inspect must of necessity have some restrictions, and must be done under such rules as the register may fairly impose, that will tend to the safety and preservation of his trust. The right claimed by the plaintiff for himself and for every person to inspect the records at will, and make copies therefrom, must of equal necessity be governed? If this right exists, it exists for all. If the plaintiff may make abstracts of the records and copies therefrom, then others have that same right. Should two or more desire to make an examination at the same time, who is to decide which shall make the examination or abstract first, or the length of time to be occupied in making that abstract? With the right come things incidental to that right; facilities for making the copies desired.