(concurring). I concur with the majority in that the cause should be remanded to the District Court with a view of a further and final hearing thereof. The decision of that court makes it entirely clear that the decree appealed from was predicated upon the fact that an unlawful preference was attempted and made by the execution of the two trust deeds in favor of the Durham Loan & Trust Company, assailed in the proceedings, and the same were accordingly set aside; whereas the ease was not one of unlawful preference at all, nor one to which that doctrine had application. There was no indebtedness existing between the trust company and the bankrupt on account of which a preference could be effected; on the contrary, the transaction was a cash one, in which the trust company loaned and paid, to and on account of the bankrupt company, the sum of $19,500 in cash, to secure the. payment of which the two liens assailed as preferences were executed.
The doctrine controlling preferences, such as the insolvency of the bankrupt, and the knowledge of the lender, the trust company, of the fact that its lien would take precedence over other creditors of the bankrupt not specifically secured, has no application here. Of course, if the two mortgages in favor of the trust company were not of the character indicated, and on account of which the trust company paid, to and for the bankrupt, the amount secured, but, on the contrary, were mere makeshifts, entered into collusively with the bankrupt with a view of covering up its property from its creditors, the same would be invalid; but, as I understand this case, nek ther from the pleadings nor the proof adduced, does it belong to the latter class of transactions, and hence the decree of the lower court should be reversed, and a decree directed in favor of the trust company. But, while all this is true, and the result last mentioned would ordinarily follow, it does appear in this ease that there was some misapprehension as to the character of the case and what could be done in the premises; moreover, it appears that the question of whether or not a preference was given the Home Savings Bank, by reason of the payment to it of its indebtedness, out of the funds borrowed from the trust company, was not passed upon — all of which makes it desirable that the District Court should act anew in the light of the law *56as indicated herein, and upon a full consideration of the merits of the controversy, having regard to the rights of all the parties in interest.