dissenting.
The point,where I am unable to assent to the opinion oí my brother Tardan is on the composition proceedings. The United States Statute of 1874 added to the forty-third section of the bankrupt act certain provisions, by which the creditors might accept a composition from the debtor. (Stat. at Large, vol. 18, § 17, p. 182.) Such composition, if made and approved, takes the property of the debtor from the control of the court and out from all bankruptcy proceedings. By the terms of the act the composition is binding on all creditors whose names and addresses, and amount of debts, are shown in the statement of the debtor It is to be passed by a majority in number and three-quarters in value of the creditors.
In estimating the value secured, creditors are to be estimated at the amount of their debt above the security. If fully secured, they cannot vote. The composition leaves the security held by *62the creditors severally unaffected. I should have thought that it was a necessary part of every bankruptcy proceeding that the court should divide the bankrupts assets among the creditors; and that a law authorizing three-fourths of the creditors to impose any terms of composition which they might choose on the remaining fourth was no proper part of a bankrupt law. Nor should I have thought that such a law for voluntary compositions could be brought within a bankrupt system, by being enacted as an amendment to a bankrupt law. I should not have thought it to be within the power of Congress to enact that three-fourths of a debtor’s creditors could fix the terms on which he could be discharged from his liability to the others, without even requiring a surrender of his property. In* the present case, the whole of the bankrupts property was, under this composition,, conveyed to other parties, and none of it was applied to the payment of the bankrupts debts. But the decision in the Matter of Reiman (12 Blatch., 562) holds this composition act valid; and even holds that a payment in notes complies with the act, which requires a payment in money.
But, passing this, the composition law excepts debts which are secured, and evidently applies only to unsecured debts. It is not so unjust as to permit a part of the creditors, by their mere voluntary agreement, to take away from, other creditors the security which they have. It is only the unsecured creditor, or the secured creditor to the extent that his debt exceeds his security, who can join in, and who is affected by, this voluntary agreement. JFor this composition is a voluntary agreement. It is a substitute for, not a continuance of, the proceedings in bankruptcy. (Mudge v. Wilmot, 124 Mass., 493.)
The creditor who has, by attachment, obtained a lien on his debtors property is a secured creditor. (Frost v. Mott, 34 N. Y., 253.) He has a specific lien. (Rinchey v. Stryker, 31 N. Y., 140.) I see no reason why he is not as much a secured creditor, within the language of this composition act, as if the debtor had given him a mortgage upon the same property. The fact of security, not the mode in which it was obtained, is the important thing. And the secured creditor is not affected by the composition, to which he does not consent. (In re Lytle, 14 Nat. R. R., 457.)
*63This seems to have been admitted in the present case. For it was conceded that the composition would not dissolve the attachment, or discharge the property from the plaintiffs’ lien. (Sage v. Heller, 124 Mass., 213.) After a meeting of creditors had been had, at which the composition proposed was accepted by the requisite number and value of creditors, and approved by the register, a committee of the creditors, favorable to the composition, sent out a circular stating that Judge Lowell had decided that the composition would not dissolve the attachment; and that it, therefore, became necessary to elect assignees ; which proceeding would not interfere with the composition. For the purpose, then, of indirectly accomplishing what the composition act forbade, they proceeded to elect assignees. The assignees were elected one day ; the composition agreement was filed the next; a new firm (proposed in the composition agreement) in a few days after applied for the transfer to them by the assignees of all the debtors property; and this was done.
Thus it is apparent that the creditors chose to adopt the plan of voluntary composition, in the place of the distribution of assets by the bankrupt court; and that what was done, by. way of appointing assignees, was done simply for the purpose (if possible) of dissolving the attachment, and not in good faith for the distribution of the assets in bankruptcy.
It seems to me that what the statute forbids cannot thus be accomplished by indirection. If the creditors compound, they must, in so compounding, leave the secured debts to remain secured. The act authorizing compounding, in speaking of debts secured, is general. It does not limit its language to debts which had been secured four months or more previously. But it leaves all securities undisturbed. And when, therefore, the creditors in this case accepted the composition, they relinquished any effect which the appointment of assignees might otherwise have had. The composition paper was signed before the appointment of the assignees. The proceeding was pending, and was at once completed by the eijtry in the records.
It may be said that the appointment of the assignees has discharged the attachment, and thus that the lien has gone altogether. But the object of the appointment of the assignees ceased with the *64composition ; and, therefore, with the ceasing of their trust, ceased all the powers necessary thereto. The composition superceded the assignees’ rights ; and with them those provisions of the act which are a part of the plan of distribution by the assignees. The assignees never claimed from the defendant in this action the property in his hands. The new firm, who did claim the property, were not purchasers from the assignees. It would be idle to call them so. . They merely took the property under the composition deed ; upon the abandonment by the assignees of all their rights, duties and powers. If they had taken under the assignees, then the assignees would have received from them the purchase-money of the property, which would have been a fund for distribution. But they took title, not through the assignees, but through the composition deed; and they cannot claim the benefit of the assignees rights.
I, therefore, think that the judgment should be reversed.
Present — Learned, P. J., Boakdman and Tappan, JJ.Judgment affirmed, with costs.