(concurring).
The state’s claim, by virtue of prerogative right, had priority until the title passed absolutely before the state sought to assert its right. Peery v. Fletcher, 93 Or. 43, 182. P. 143; U. S. F. & G. Co. v. Bramwell, 108 Or. 261, 217 P. 332, 32 A. L. R. 829; Marshall v. New York, 254 U. S. 380, 41 S. Ct. 143, 65 L. Ed. 315. This is in harmony with Tidd’s Practice (all cited in the majority opinion) as follows: “When goods are bona fide sold or fairly assigned.” The instant assignment did not transfer the title absolutely. Section 21 (a) 4, (b) 1, title 11, USCA, and section 110, title 11, USCA. The provisions of the Bankruptcy Act became a part of the transaction, creating a debtor and creditor relation, and right and method of procedure, state and federal, to satisfy the creditor claims as though specifically set out in the arrangement. Walker v. Whitehead, 16 Wall. (83 U. S.) 314, 21 L. Ed. 357; Southern Surety Co. v. Oklahoma, 241 U. S. 582, 36 S. Ct. 692, 60 L. Ed. 1187; Farmers’ & Merchants’ Bank v. Federal Reserve Bank, 262 U. S. 649, 43 S. Ct. 651, 67 L. Ed. 1157, 30 A. L. R. 635. The assignment was not fair; title was not free from defect, but was contingent as much as though the assignment had the reservation: “Subject to the provisions of the Bankruptcy Act.” The right of the assignee, however, was in progress .to make the title absolute, and but for the contingency (adjudication in bankruptcy), title would have been absolute four months after the assignment, but “no inception of an execution can bar the Crown.” Caspar v. Chitty, 1 Burr. 36 (cited in the majority opinion). Upon adjudication the title, in abeyance, pending contingency, vested in the trustee upon his election and qualification, as of date of adjudication (section 110, title 11, USCA), and the state’s priority claim attached.
I don’t think the Bramwell Case is in point, except as to declaring the law of the state (applicable to particular facts). The appointment of the receiver did not disturb the title of the debtor, and no contingency would have ripened title in the receiver. The receiver was merely the liquidating agent of the court. Union Bank of Chicago v. Kansas City Bank, 136 U. S. 223, 10 S. Ct. 1013, *42134 L. Ed. 341; Nicholson v. Western Loan & Building Co. (C. C. A.) 60 F.(2d) 516. Whether the ripening of the contingent title in the assignee at the end of four months, with no intervening adjudication, would defeat a sovereign’s priority right, is not now before the court, and our decision should he restricted to the peculiar facts in this ease. I think the rule in the Bramwell Case applicable here is stated too broadly.
I concur in reversal.