The alleged defenses which are assailed will be of no consequence if it appears from the evidence upon the trial that the bill of sale was executed in good faith and was accompanied by a change of possession of the articles covered by it.
The first defense attacked as insufficient alleges the proof of the plaintiff’s judgment and 'its allowance in the bankruptcy court without the disclosure of the pendency of this action, as a waiver of the plaintiff’s lien growing out of the commencement of the action.
*549Although the provisions of the Bankruptcy Act of 1867 differ somewhat from those of the present act on the subject, I am inclined to the view that the difference is not substantial. Under the act of 1867, this would have been a good defense and, therefore, is good under the present act. Bankr. Act of 1898, § 57; Ansonia Brass & Copper Co. v. Babbitt, 74 N. Y. 395.
The second defense attacked is in substance the assertion of the adjudication of bankruptcy, the appointment of the trustee, the condemnation of the lien acquired by the plaintiff by the commencement of the action, the_ right of the trustee to maintain an action in favor of all the creditors to compel the defendant Pillmore to account and the inability of the plaintiff to maintain this action.
Article VIII, section 90, as amended by chapter 248 of the Laws of 1900, of chapter 418 of the Laws of 1897, being chapter 49 of the General Laws, known as the Lien Law, originating in chapter 279 of the Laws of 1833, is as follows: “Every mortgage or conveyance intended to operate as a mortgage of goods and chattels * * * which is not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, is absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, is filed as directed in this article.”
There are many authorities to sustain the proposition that a chattel mortgage that is not filed, diligently, as required by statute, while the mortgaged property remains in the possession of the mortgagor, is absolutely void as to those claims of the creditors of the mortgagor which are outstanding during the period in which the mortgage remains unfiled. Karst v. Gane, 136 N. Y. 316; Stephens v. Perrine, 143 id. 476; Stephens v. Meriden Britannia Co., 160 id. 178; Brunnemer v. Cook & Bernheimer Co., 180 id. 188; Russell v. St. Mart, id. 355; Skilton v. Codington, 185 id. 80.
This is not because there is anything fraudulent in fact or law in the failure to file, but because of the absolute terms of the statute.
*550For all practical purposes the hill of sale in question may he regarded as a chattel mortgage. Upon the theory of the complaint, it was a “ conveyance intended to operate as a mortgage of goods and chattels,” in the language of the statute.
Such an instrument is good as between the parties thereto, though not filed and though the property covered by it remains in the possession of the vendor.
Such an unfiled mortgage is void as to creditors, even though the property covered thereby is disposed of by the mortgagor or the mortgagee or by their united action, unless to an innocent party taking it in good faith. Matter of Beede, 138 Fed. Rep. 441.
This is with the qualification that a bona fide transfer of the property by the mortgagor to the mortgagee in payment of the mortgage debt, before a creditor obtains a lien by judgment and execution, will be protected. Karst v. Gane, supra; Bowdish v. Page, 153 N.Y. 104.
But such a transfer would not be immune against the attack of the trustee in bankruptcy in case of the adjudication in bankruptcy of the mortgagor within four months of the transfer.
In case of a transfer of the property by the mortgagee under the mortgage such creditor, after obtaining a judgment against the mortgagor and the return of an execution thereon unsatisfied, can maintain an action in equity to set aside the transfer and compel the mortgagee to account for the property or its-value. Stephens v. Perrine, supra; Brunnemer v. Cook & Bernheimer Co., supra.
In such a case I am inclined to the view that the commencement of the action by the judgment creditor is in effect the commencement of a creditors’ bill and thereby creates a lien upon what represents in the hands of the mortgagee the mortgaged property.
It has been held that property covered by a chattel mortgage, not filed, passes to an assignee under a general assignment made by the mortgagor, subject to the lien of the mortgage. Sheldon v. Wickham, 161 N. Y. 500.
Logically, such property is still subject, to the claim of a *551creditor whose claim existed while the mortgage remained unfiled and may be put in judgment and in such form as to lay hold of the property before it passes to a tona fide holder, blatter of Beede, 138 Fed. Rep. 441.
Under the Bankruptcy Law of 1867, the lien of an unrecorded chattel mortgage was held to be good against the assignee in bankruptcy. Stewart v. Platt, 101 U. S. 731.
There was nothing then in the Bankruptcy Act to save the rights of creditors under our State statute requiring the filing of chattel mortgages.
Under the present Bankruptcy Act the defect iu the old law has been remedied, and the trustee in bankruptcy now can protect the rights of the creditors.
Subdivision a of section 67 of the present Bankruptcy Act is as follows: “ Claims which for want of record or for other reasons would not have been valid liens as against the claims of the creditors of the bankrupt shall not be liens against his estate.”
This chattel mortgage was not a valid lien upon the property covered by it as against the claims of the creditors of the bankrupt for the want of record or filing. That is plain.
Assuming that the commencement of the action by the plaintiff gave him a lien upon the claim against the defendant Pillmore, the lien was created within four months of the adjudication of bankruptcy, and when the defendant Jones was unquestionably insolvent, and hence was void under the Bankruptcy Act as against creditors. § 67, subd. f. In other words, this particular creditor was prevented by the Bankruptcy Act from enforcing his ‘rights as against the lien attempted to be created, because he would thereby gain a preference contrary to the Bankruptcy Act.
Subdivision b of section 67 of the Bankruptcy Act is as follows: “ Whenever a creditor is prevented from enforcing his rights as against a lien created, or attempted to be created, by his debtor, who afterwards becomes a bankrupt, the trustee of the estate of such bankrupt shall be subrogated to and may enforce such rights of such creditor for the benefit of the estate.”
This provision protects not only the claim of the plaintiff, *552but the claim of all the creditors of the mortgagor, .for the benefit of the estate and of all the creditors of the bankrupt.
The same right which these creditors would have had to compel the defendant Fillmore to account, if Jones had not become a bankrupt, is vested in the trustee in bankruptcy.
Subdivision e of section 70 of the present Bankruptcy Act is as follows:
“ The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless he was a bona fide holder for value prior to the date of the adjudication. Such property may be recovered or its value collected from whoever may have received it, except a bona fide holder for value.”
The Court of Appeals has recently held that the present Bankruptcy Act arms the trustee in bankruptcy with the right to assert the invalidity of an unfiled chattel mortgage in favor of the creditors of the mortgagor, even though their claims are not in judgment. Skilton v. Codington, 185 N. Y. 80.
There is a further consideration regarding this defense.
The following allegation appears in -the complaint: “ Flaintiff further alleges upon information and belief that there was no consideration whatever passing from said defendant William F. Fillmore to said defendant Sheridan J. Jones for said alleged bill of sale.”
In the prayer of the plaintiff for relief, the pleader seems to have based the plaintiff’s claim for relief upon the ground that the bill of sale was fraudulent and void. against the plaintiff.
Although counsel have not argued the case upon that theory, it seems to me that the complaint may fairly be treated as the ordinary creditors’ bill to set aside a transfer of the judgment debtor fraudulent against his creditors. In that view of the case, the lien created by the commencement of the action was void under the Bankruptcy Act; and, under the provisions of the Bankruptcy Act already referred to *553and under section 7 of article I of the Personal Property Law, being chapter 47 of the General Laws, the sole right to maintain an action for the benefit of the creditors resides in the trustee in bankruptcy.
The demurrer is overruled, with costs.
Demurrer overruled, with costs.