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On Application for Review of a Decision by the Board of United States General Appraisers.
The decision below sustained the importers' protest against the assessment of duty by the collector of customs at the port of New York; the Board's opinion reading as follows:
HAY, General Appraiser. In this case entry was made on a pro forma invoice. From the testimony it appears that when the consular invoice arrived It was found to bear a lower value for the merchandise in question than that contained in the pro forma invoice. The collector assessed duty upon the value given in the pro forma invoice, rejecting as illegal and unwarranted the second appraisement made by the appraiser approving the value given in the consular invoice.
The merchandise should have been assessed upon the value stated in the consular invoice, the appraiser having approved that value. Foard's Case, G. A. 6,723 (T. D. 28,796).
The protest is sustained, and the collector directed to reliquidate the entry accordingly.
D. Frank Lloyd, Deputy Asst. Atty. Gen., for the United States.
RICE & HOCHSTER v. UNITED STATES.
Pyroxylin rods partly finished are dutiable as partly finished "articles"
[Ed. Note. For other cases, see Customs Duties, Dec. Dig. $ 24.*] On Application for Review of Decision by the Board of United States General Appraisers.
Kammerlohr & Duffy (John G. Duffy, of counsel), for importers.
D. Frank Lloyd, Deputy Asst. Atty. Gen. (Charles D. Lawrence, of counsel), for the United States.
MARTIN, District Judge. The importation in controversy consists of pyroxylin in the form of rods. It was assessed for duty at the rate of 65 cents per pound and 25 per cent. ad valorem under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 17, 30 Stat. 152 (U. S. Comp. St. 1901, p. 1628). The importers protested, claiming that duty should have been assessed at the rate of only 60 cents per pound under said paragraph.
Paragraph 17 is as follows: "Collodion and all compounds of pyroxylin, whether known as celluloid or by any other name, fifty cents per pound; rolled or in sheets, unpolished, and not made up into articles, sixty cents per pound; if in finished or partiy finished articles and articles of which collodion or any compound of pyroxylin *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Repór Indexos
is the component material of chief' value, sixty-five cents per pound and twenty-five per centum ad valorem."
The Board has found as a fact that this was a partly finished product as imported, and therefore held the same to be properly dutiable under the third clause of said paragraph 17. It is a simple question of fact. I have examined the record, and can see no reason why the court should disturb this finding of the Board.
In re DIX.
(District Court, E. D. Pennsylvania. February 10, 1910.)
PROPERTY BY CREDITOR.
Where the holder of mortgages given by a bankrupt foreclosed and bid in the property for a nominal sum, there being no competing bid, on his filing a claim against the bankrupt estate for the balance of his debt, the actual value of the property may be inquired into, and his claim will be allowed only for the amount equitably due.
[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. $$ 503, 513; Dec.
Lewis L. Smith, for claimant.
J. B. McPHERSON, District Judge. The facts of this case are as follows:
The bankrupt owed James L. Cocker $6,655.40 upon two bonds, secured by two mortgages upon two houses and lots of ground. The mortgages were foreclosed, and the sheriff sold the property to Cocker · for $100. There was no other bidder at the sale, and the sum paid
by Cocker was applied to the costs. He received official deeds and went into possession. Afterwards, he presented a claim against the bankrupt estate for the full amount of the bonds. In his examination before the referee he testified that the houses rented for $53 a month; that their combined value was about $5,000; that he would have bid $5,500 at the sheriff's sale in order to protect his mortgages; and that he was willing to take now $6,500 for the property, as he had spent about $100 in improvements since the sale. He summed up his position very frankly by saying that he thought in fairness the bankrupt owed him about $500; but when the referee took him at his word, and reduced his claim to that sum, he declined to acquiesce and had the question certified.
The allowance of the claim in full was resisted on the ground that only a small part, if any, of the debt was equitably due, and this contention was sustained by the learned referee (George E. Darlington, Esq.), who allowed only $500, as has already been stated. The pre•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
cise question now involved was recently decided by the Court of Appeals for the Third Circuit in Winter's Appeal, 174 Fed. 556, and I refer to the opinion of the court in that case for the reasoning that justifies the approval of the referee's order. It may perhaps be advisable to call particular attention to the fact that both in Winter's Appeal and in the present controversy there was no competitive bidding, and that the mortgage creditor was therefore not opposed in the process of transforming his interest from the ownership of a mortgage to the ownership of the fee. In neither case did the amount bid at the sale throw any light on the real value of the property, and in both cases the real value affirmatively appeared in the bankruptcy proceedings.
On the authority of Winter's Appeal, the order of the referee is affirmed.
In re BEIHL. (District Court, E. D. Pennsylvania. February 10, 1910.) No. 3,511. BANKRUPTcy (§ 184*)—ProPERTY PAssiNG To TRUSTEE-INvALId MoRTGAGE of
PERSONALTY. An insolvent conveyed personal property of which he was the absolute owner to a creditor for the expressed consideration of $1, and took back a lease of the same, also giving a nominal consideration, with the right in the lessee to repurchase if he had paid his indebtedness to the lessor. Held, that the transaction was an attempted mortgage, invalid under the law of Pennsylvania for want of delivery, and that on the bankruptcy of the debtor the property passed to his trustee.
In the matter of Ernest H. Beihl, bankrupt. On review of order of referee. Affirmed.
Franklin Spencer Edmonds, for George W. Edmonds.
J. B. McPHERSON, District Judge. The facts of this dispute are not in question, and may be thus stated:
A voluntary petition was filed by the bankrupt on July 2, 1909. A few days before—on June 25th–his landlord had distrained for rent upon the horses and wagons now in controversy. The District Court restrained the sale, and thereupon George W. Edmonds claimed to be the owner of the articles levied upon, averring that Beihl had sold them to him on May 10th, and was in possession under a lease made by Edmonds on the same day. The transaction was as follows: Beihl, who was a retail dealer in coal, owed Edmonds $255.53 for coal previously bought. In consideration of this debt, and of Edmonds promise to furnish more coal to be used by Beihl in his retail trade, the bankrupt made a bill of sale of the horses and wagons. This document sells the property for an expressed consideration of $1, saying
•For other cases see same topic & 5 NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
nothing about the other considerations. On the same day Edmonds made a lease of the horses and wagons to Beihl for one year from May 15th, at a rental of $1 a month. The agreement provides for the return of the property at the end of the year in good order, save for reasonable wear, and gives to Beihl an option to buy for $10 within one month thereafter, but expressly declares that Beihl may only exercise this option if he has then paid all his indebtedness to Edmonds. Under these agreements Edmonds delivered to the bankrupt a further quantity of coal, valued at $925. The landlord's claim amounted to $487.73, and it was finally arranged before the referee that Edmonds should pay this sum, should take over the horses and wagons at a valuation of $1,250, and should pay to the trustee the balance in excess of the landlord's claim if it should be decided that the lease was not valid against the general creditors of the bankrupt. The transaction of May 10th was in good faith, but there was no delivery of possession; Beihl continued to use the horses and wagons in his business until the petition in bankruptcy was filed. Upon these facts the referee (Richard S. Hunter, Esq.) held that “the net result of this arrangement was undoubtedly under the Pennsylvania law a pledge or mortgage of this property,” and ordered Edmonds to pay $717.73 to the trustee. In my opinion this order was right. I see no difference in principle between this case and In re Millbourne Mills Co. (C. C. A., 3d Circuit) 172 Fed. 177. There the milling company was the absolute owner of grain and flour in its own possession, and undertook to pledge it by issuing warehouse receipts, but without delivering the property itself. The attempted pledge was held to be invalid, and, of course, therefore the absolute title had passed to the trustee. This is precisely what happened here. The bankrupt had an absolute title to the horses and wagons in his own possession, and undertook to pledge them by a somewhat roundabout method, but without delivering the property. The bill of sale and the socalled “lease” and the parol contract concerning the payment of the past-due claim for coal—taken together, as they should be taken— clearly amount to a pledge or mortgage of the property. The bill of sale is equivalent to the deed, and the lease and parol agreement constitute the defeasance. Davis v. Crompton, 20 Am. Bankr. Rep. 53, 158 Fed. 735, 85 C. C. A. 633, is not in point. In that case the bankrupt (the Arkonia Fabric Company) never had been the unqualified owner of the looms then in question. A qualified title by a conditional sale was all that the company had ever acquired, and this therefore was all that the trustee could take in succession to the bankrupt's right. No lien by levy or attachment had been gained by any creditor of the bankrupt, and the only disputed point was the extent of the trustee's title. It was held that the trustee did not get more than the bankrupt had to give, and must therefore take the looms subject to the conditions of sale. Here, however, there is no conditional sale. The bankrupt was originally the unqualified owner of the property, and the trustee succeeded to that kind of ownership unless the bankrupt had previously transferred it. He had tried to transfer it; but the effort was of no avail owing to his failure to deliver possession, and
therefore the trustee, although merely the representative of the bankrupt, succeeded to the absolute title. The difference between Davis v. Crompton and In re Millbourne Mills Co. seems to be clear.
The decision of the referee is affirmed.
In re KULLBERG. (District Court, D. Minnesota. October 1, 1909.) 1. BANKRUPTCY (8 166*)-LIENS-EVIDENCE OF INTENT TO DEFRAUD CREDITORS.
The mere fact that a preference resulted from the giving of a mortgage by a bankrupt does not render it void under Bankr. Act July 1, 1898, c. 541, § 670, 30 Stat. 564 (U. S. Comp. St. 1901, p. 3449), as a transfer made "with intent" to hinder, delay, or defraud his creditors.
(Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. $ 252; Dec. Dig.
$ 166.*] 2. BANKRUPTCY (8 166*)--LIENS-GOOD FAITH OF MORTGAGEE.
The fact that a mortgagee, to whom a bankrupt gave a mortgage for a present consideration within four months prior to his bankruptcy, knew that the proceeds were to be used to pay debts, does not impeach his good faith, nor render the mortgage void under Bankr. Act July 1, 1898, c. 541,
67d, 30 Stat. 564 (U. S. Comp. St. 1901, p. 3449), unless he also knew, or bad reasonable cause to believe, that the borrower was insolvent.
(Ed. Note.--For other cases, see Bankruptcy, Cent. Dig. 88 255–257 ; Dec. Dig. & 166.*]
In the matter of John Kullberg, bankrupt. On review of decision of referee. Affirmed.
Stevens & Stevens, for creditors. Dougherty & Dahl, for bankrupt. WILLARD, District Judge. The bare fact that a preference resulted from this transaction does not make the mortgage void under the provisions of section 67e of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 564 (U. S. Comp. St. 1901, p. 3449]).
Judge Sanborn, speaking for the Circuit Court of Appeals, Eighth Circuit, in the case of Coder v. Arts, 152 Fed. 943, 947, 82 C. C. A. 91, 95 (15 L. R. A. (N. S.] 372), said:
"A transfer made in good faith to pay or to secure an honest antecedent debt by an insolvent within four months of the filing of the petition in bankruptcy by or against him constitutes no evidence of an intent on his part to hinder, delay, or defraud other creditors, within the meaning of section 67e of the bankrupt law, notwithstanding the fact that its necessary effect is to hinder and delay them, and to deprive them of the opportunity they might otherwise have had to collect tbeir claims in full."
Having been given for a present consideration, the mortgage in question is valid under the provisions of section 67d if it was made in good faith, and not in contemplation of or in fraud of the act.
The fact that the mortgagee knew that the proceeds were to be used to pay existing creditors does not make the mortgage void. This has Por other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes