(concurring). This is an action brought by a
trustee in bankruptcy to set aside an alleged preferential or fraudulent transfer.
It is alleged in the complaint:
(1) That such transfer was made by the bankrupt while insolvent, and within four months before the filing of the petition in. bankruptcy, for the purpose and with the iiitent to prefer the intervener and enable it to obtain a greater percentage of its debt than any other ¿.realtors of the same class. • •
(2) That such transfer was made “by said Max Schultze with the purpose and intent on his part to hinder, delay, and defraud his creditors, or some of them, in the collection of their just debts, and with the purpose and intent to hinder, delay, defraud, and prevent all .of his *840creditors from receiving the same or an equal share in, from, and out ofthe assets of his estate, in violation of the Bankruptcy Act.”
The trial court made findings to the effect:
(1) That it was not established by a preponderance of the evidence that the moneys transferred to the intervener belonged to the bankrupt, or that his estate had been diminished by the deposit and payment thereof.
(2) That the intervener did not know, and had no reasonable cause to believe, that the transfer or payment of the moneys to it would effect a preference.
These findings are based upon the testimony of witnesses who were called and testified orally in the trial court, so the trial judge had opportunity, not only to hear their testimony but to observe their demeanor while testifying. And in my opinion both findings are correct. The first finding is decisive of the action, for manifestly there can be-neither disposition of property with the intent to hinder, delay, or defraud creditors, nor a preferential transfer, within the purview of the Bankruptcy Act, unless the property transferred was something belonging to the bankrupt, which his other creditors had a right to subject to the payment of their claims. 7 C. J. 165, 166. The burden was upon the plaintiff, trustee, to establish that the moneys sought to be recovered belonged to the bankrupt, and were by him transferred in violation of the provisions of the Bankruptcy Act. 7 C. J. 269. This burden was not sustained. On the contrary, the preponderance of the evidence sustains the contention of the intervener that the moneys in controversy did not belong to the bankrupt, but belonged to Fred! Schultze.
Grace, C. J., and Birdzell, J., concur.