purchase money mortgage on the lot for $1,000. He also held that the York Manufacturing Company had no lien on the machinery, but was a general creditor only.

The District Court, on a petition for review, reversed this ruling, and held that the mortgage of Waight & Ames did not cover the machinery supplied by the York Manufacturing Company, but that the latter had no lien thereon as against general creditors; that the mortgage of Waight & Ames was a valid lien on the rest of the property, subject to the purchase money mortgage on the lot; that they were not creditors of the bankrupt corporation, except as to the sum of $1,500 they had charged for becoming sureties under the contract above mentioned, but the court held that they might prove the debts of the creditors who held the notes on which they were sureties, if the creditors failed to do so, and that they might be subrogated to the rights of the creditors to the extent they had paid or might pay any balance due on said notes remaining after applying thereon the surplus of the proceeds of the sale of the real estate, after the purchase money mortgage had been paid, and that the entire $10,000 of the notes, which were mentioned in the contract between Waight & Ames and the company, and for which they were to be sureties, might be included in this right of subrogation. This of course did not include a note for $1,000, which had been paid five months before the proceedings in bankruptcy. The District Court held that the mortgage of Waight & Ames was subordinate to the lien of the York Manufacturing Company, because no part of it had been placed on the ground of the bankrupt until two months after the making of the mortgage to Waight & Ames. The court, however, held that the general creditors were entitled to have the plant of the York Manufacturing Company sold for the payment of their claims because of the failure of that company to file the conditional sale contract, as required by the Ohio statute, and such failure rendered the contract void as to the creditors. Waight & Ames did not appeal from the District Court's decree.

Argument for Appellant.

201 U. S.

The Circuit Court of Appeals, upon appeal by the York Manufacturing Company, affirmed the District Court, 135 Fed. Rep. 52, and that company has appealed here.

Mr. Constant Southworth, with whom Mr. John L. Lott and Mr. Louis J. Dolle were on the brief, for appellant:

Unrecorded conditional sale of chattels is superior to lien of prior realty mortgage. Fosdick v. Schall, 99 U. S. 235; Manhattan Trust Co. v. Sioux City Ry. Co., 76 Fed. Rep. 658; Meyer v. Car Co., 102 U. S. 1; Cumberland v. Maryport (1892), 1 Chan. 415; Mott Iron Works v. Middle States L. B. & C. Co., 17 App. D. C. 584; Duntz v. Granger Brewing Co., 83 N. Y. Supp. 957. Other cases of conditional sales are: Ins. Co. v. George, 77 Minnesota, 319; Adams Mach. Co. v. Association, 119 Alabama, 97; Warren v. Liddel, 110 Alabama, 232; Lansing &c. Works v. Wilbur, 111 Michigan, 413; Harris v. Hackley, 127 Michigan, 46; German v. Weber, 16 Washington, 95; Page v. Edwards, 64 Vermont, 124. See also Campbell v. Roddy, 44 N. J. Eq. 244; Hine v. Morris, 3 Bull. 515 (Ohio Dist. Ct.); Tifft v. Horton, 53 N. Y. 377; Blinkley v. Forkner, 117 Indiana, 176; Wheeler v. Bedell, 40 Michigan, 693.

Whether personalty attached to realty becomes realty is a question of intention between the parties. Tifft v. Horton, supra; Aldine Mfg. Co. v. Barnard, 84 Michigan, 632.

The word "creditors" in the Ohio conditional sales law includes only judgment creditors. A judgment is requisite in order to enable a creditor to attack a previous conveyance by his debtor. This is because the existence of his debt must be in some way ascertained and must be fastened upon the land. Martin v. Bowen, 51 N. J. Eq. 452.

It is as well settled in statutes as to conditional sales, as in statutes in regard to chattel mortgages, that the word "creditor" refers solely to creditors who hold some additional lien. The reason for this is that the fact that the conditional vendor, or the mortgagee, under instruments not properly filed, has no less rights than formerly, and such failure to record does not

give to the mere creditor any specific right in the property conditionally sold. It merely leaves the property in such a condition that the general creditor by diligence may acquire a prior lien thereon. Jones on Chattel Mortgages, 4th ed., § 245; In re Cassie L. Chadwick, 50 Wkly. Law Bull. (Ohio) 413; Jones v. Graham, 77 N. Y. 628; Sheldon v. Wickham, 161 N. Y. 500; Stephens v. Meriden Brittania Co., 160 N. Y. 178; Meyer Bros. Drug Co. v. Pipkin Drug Co., 136 Fed. Rep. 396; Stewart v. Beale, 7 Hun, 405; Hall v. Keating Implement Co., 33 Tex. Civ. App. 526; Bowen v. Wagon Works, 91 Texas, 385.

The statute protects only subsequent creditors and mortgagees and not prior creditors. In re Sewell, 111 Fed. Rep. 791; In re Ducker, 133 Fed. Rep. 771; S. C., aff'd, 134 Fed. Rep. 43; Baldwin &c. Co. v. Crow, 86 Kentucky, 679; Wicks v. McConnell, 20 Ky. L. R. 84; Brown v. Brabb, 67 Michigan, 17; First National Bank of Corning v. Reid, 122 Iowa, 280; In re Cannon, 10 Am. B. Rep. 64; Harrison v. South Carthage Mining Co., 106 Mo. App. 32. The date from which to reckon who are prior creditors is the date of delivery of the machinery. In re Gosch, 126 Fed. Rep. 627.

The trustee in bankruptcy takes no greater title than the bankrupt and the bankruptcy proceedings do not operate as a judicial seizure, conferring new and greater rights on the creditors of the bankrupt. Thompson v. Fairbanks, 196 U. S. 516; Hewit v. Berlin Machine Works, 194 U. S. 296; Sheldon v. Wickham, 161 N. Y. 500; Collier on Bankruptcy, 5th ed., 553; Gibson v. Warden, 14 Wall. 244; Douglas v. Vogeler, 6 Fed. Rep. 53; Donaldson v. Farwell, 93 U. S. 631; Winsor v. McLellan, 2 Story, 492; Mannix v. Purcell, 46 Ohio St. 102; Shaw v. Glen, 37 N. J. Eq. 32; Van Heusen v. Radcliff, 17 N. Y. 580; Nebraska Plow Co. v. Blackburn, 104 N. W. Rep. 178; Cincinnati Warehouse Co. v. Combs, 109 Kentucky, 21; In re Wise, 121 Iowa, 359; Ryder v. Ryder, 19 R. I. 188. It would be unconstitutional for Congress to attempt to give the mere filing of the petition, or the adjudication, the

effect of rendering judgment in favor of all the creditors. The proceedings have none of the characteristics of a recovery of a judgment. The debts are not adjudicated. The mere filing of the petition could not have that effect. The adjudication could not have that effect, because at most the claims of only the petitioning creditors are passed upon.

If the equities of the York Manufacturing Company and the creditors are equal, the former must prevail, as being prior in time. Cincinnati Warehouse Co. v. Combs, supra.

As to the creditors having actual knowledge of the reservation of title to appellant, their claims are entitled to no priority.

The sole object and purpose of the recording act is to give notice. If there is actual notice the object of the act is accomplished. Hence, it has been uniformly held, that notice is equivalent to record. There is an exception in Ohio as to mortgages of land. This is because of the peculiar wording of the statute. That notice is equal to record has been the law ever since the leading case of Le Neve v. Le Neve, 2 White & Tudor Leading Cases in Equity, 109. Batchelder v. Sanborn, 66 N. H. 192; Frick v. Fritz, 115 Iowa, 438; Aultman v. Kennedy, 114 Iowa, 444; Dyer v. Thorstad, 35 Minnesota, 534; Smith & Nixon v. Simper & White, 15 Ohio Cir. Ct. 375.

There was no appearance for appellee.

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

The question is simply whether the York Manufacturing Company has a right under its conditional sale of the machinery to the bankrupt corporation to take the machinery out of the premises where it was placed as against all except judgment, or other, creditors, by some specific lien. There are no judgment creditors in the case and no attachment has been levied, and the question is simply whether the adjudication in bankruptcy is equivalent to a judgment or an attach

ment on the property, so as to prevent the York Manufacturing Company from asserting its right to remove the machinery by virtue of the reservation of title contained in its contract.

In Wilson v. Leslie, 20 Ohio, 161, the court was construing the language of the statute relating to chattel mortgages, which declared a mortgage absolutely void as against creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof should be deposited forthwith, as directed in the act. The court held that the mortgage was not void for lack of filing, as between the parties thereto, but that the statute only avoided the instrument as to those creditors who, between the time of the execution of the mortgage and the filing thereof, had taken steps to "fasten upon the property for the payment of their debts." As against such as had in the interim secured liens by attachment, execution or otherwise, the mortgage would be void. When filed with the recorder the instrument became valid as against all persons, except those whose rights had attached upon the property before the recording of the instrument. See to the same effect In re Shirley, 112 Fed. Rep. 301.

We have not been referred to any decision of the Supreme Court of Ohio as to the meaning of the statute requiring the filing of contracts of conditional sales, but we concur with the Circuit Court of Appeals in this case, that the statute would render the unfiled contract void as to the same class of creditors mentioned in the chattel mortgage statute. Therefore the contract would be void as to creditors who before its filing had "fastened upon the property" by some specific liens. As to creditors who had no such lien, being general creditors only, the statute does not avoid the sale, which is good between the parties to the contract.

The mortgage of Waight & Ames cannot be a lien on the machinery sold by the York Manufacturing Company, because the mortgage was prior to the time when any portion of such machinery was placed upon the land. There was no clause in