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App. Div.] Fourth Department, July, 1911. of the transfer. (Stelz v. Shreck, 128 N. Y. 263; Jooss v. Fey, 129 id. 17.) In the latter case it is said: “ This estate of tenancy by the entirety has but one feature in common with that of a joint tenancy, and that is in the right of survivorship. In all other essential respects they differ. The estate which vests by virtue of a grant jointly to husband and wife is peculiarly the result or product of the marriage relation and depends for its continuance upon the unity of man and wife.”

The deed clearly and in so many words expressing the intention of the grantees to take and hold as tenants by the entirety, and it being impossible for them to take in that tenancy, it is not to be presumed that they intended to take in some other tenancy which does not give effect to the intention. Von constat, if they had been advised that they could not take as husband and wife, they would have chosen to take as tenants in common rather than as joint tenants, or by conveyance to them as tenants in common or joint tenants during their joint lives with remainder to the survivor. When we enter upon

the field of conjecture the point at which we find the parties would have ultimately landed cannot be determined. Their statement as to their relation being false, and the tenancy expressed being necessarily based upon this false statement, or assumption of fact, the expression of that intention should be disregarded and the tenancy created by the conveyance determined as though it had been omitted therefrom. Attention is called to the case of Messing v. Messing (64 App. Div. 125), decided by this court as an authority that a tenancy by the entirety may exist between two parties who are not husband and wife. It is true that there are some expressions in the opinion which, unless the facts involved in that case are borne in mind, might seem to support that view. But the court was then considering the effect of words indicating the intention to provide for a right of survivorship in the grantees, and the expressions in the opinion as to the rights of tenants by the entirety may be considered to have been used more by way of illustration than as expressive of the actual tenancy created by the deed. The intention that there should be a right of survivorship in the grantees was clearly set forth in the deed under consideration in that case; but they were not at the time husband and wife,

Fourth Department, July, 1911.

[Vol. 146. and the deed contained no expression of intention that they should take as husband and wife, or as tenants by the entirety.

I conclude that defendant and plaintiff's daughter took the title to the premises as tenants in common.

While it is true that tenants in common presumptively take in equal shares (Jackson v. Moore, 94 App. Div. 504), this is a presumption only, which may of course be rebutted if the facts show that equitably they should hold in different shares. (Walker v. Barrow, 43 La. Ann. 863.) There is ample reason in this case for holding that plaintiff is equitably entitled to a two-thirds interest in the premises. He furnished his own money with which two-thirds of the cash consideration was paid. True, it was furnished to make the payment as the daughter had agreed with defendant to make it. Defendant, , however, must have known the circumstances, and equitably cannot complain if plaintiff receives the share in the estate for which his money actually paid.

All concurred.

Interlocutory judgment affirmed, with costs.

THE BANK OF WAYNE, Appellant, v. WILLIAM A. GOLD, as Trus,

tee in Bankruptcy of W. A. BOSTWICK GLASS COMPANY, a Bankrupt, Respondent.

Fourth Department, July 11, 1911.

Bankruptcy - chattel mortgage made within four months of bank

ruptcy - illegal preference - indorser of note of bankrupt is creditor - appeal — when findings implied by opinion of court below- set

off — when claim should be presented in bankruptcy court. A corporation, being insolvent, and within four months prior to filing a

petition in bankruptcy, gave a chattel mortgage to the plaintiff bank as collateral security for a loan made at the time the mortgage was given. It appeared that the loan was made upon the solicitation of a person who was a director of the bank and of the insolvent corporation, and was induced for the purpose of paying a prior indebtedness of the insolvent on an overdue note on which he was liable as an indorser and

which was otherwise unsecured, a renewal thereof having been refused. Held, that the indorser was a creditor of the insolvent corporation within

the meaning of the Bankruptcy Act;

App. Div.]

Fourth Department, July, 1911. That the chattel mortgage being made within four months of the petition in bankruptcy created an unlawful preference, so that the bank was not entitled to recover the proceeds of the mortgaged property when sold by the trustee in bankruptcy. To constitute a preferential transfer it is immaterial to whom the transfer is inade if it be made for the purpose of paying the claims of one creditor in preference to those of others. The Appellate Division will find that the loan to the insolvent corporation was made by the bank with knowledge that it was intended to create a preference in favor of the indorser although there is no specific finding to that effect, if it clearly appear from the opinion of the court below that it so determined and if the evidence leads to no other conclusion. The bank, having surrendered possession of the mortgaged property, is not entitled to recover as a set off advances made by it in connection therewith after it had taken possession under the mortgage and before the bankruptcy proceedings, where it does not appear that any part of the advances resulted in any advantage to the mortgaged property. It seems, having voluntarily relinquished possession, the creditor should collect the amount, if any, to which it is entitled by presenting its claim in the course of the administration in the bankruptcy court. McLENNAN, P. J., dissented.

APPEAL by the plaintiff, The Bank of Wayne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wayne on the 9th day of January, 1911, upon the decision of the court, rendered after a trial at the Wayne Special Term, dismissing the complaint.

The action is brought to recover of the trustee in bankruptcy of the W. A. Bostwick Glass Company the sum of $1,615.42, the proceeds of property taken possession of and sold by him as property of the bankrupt. Plaintiff's claim to the fund is predicated upon a chattel mortgage covering the property so sold by the trustee given to it by the bankrupt within four months prior to the filing of the petition in the proceedings in which the W. A. Bostwick Glass Company was adjudicated a bankrupt.

Charles P. Williams, for the appellant.

Charles L. Nicholls (Erwin S. Plumb of counsel), for the respondent. Robson, J.:

That the W. A. Bostwick Glass Company was insolvent at the time it gave to plaintiff the chattel mortgage in question

Fourth Department, July, 1911.

(Vol. 146. and that plaintiff then had reasonable cause to believe, and in fact is chargeable with actual knowledge, that the enforcement of the mortgage would operate as a preference and that a preference was thereby intended within the meaning of that term, as defined by section 60 of the Bankruptcy Act, is amply shown by the proofs presented to the trial court. It is true that the mortgage was given as collat'eral security for the payment of money then loaned the glass company by plaintiff, and that plaintiff's claim was not a precedent indebtedness. But it clearly appears that the loan was made by the plaintiff primarily upon the solicitation of Mapes, a director of both plaintiff and the glass company, for the known purpose of paying therewith a prior indebtedness of the glass company, for the payment of which Mapes was liable as indorser, and which was otherwise unsecured. The note representing this claim had then matured and renewal, or extension thereof, had been refused. Mapes, as such indorser, was a creditor of the glass company within the meaning of that term as used in the Bankruptcy Act. (Kobusch v. Hand, 19 Am. Bank. Rep. 379.) Mapes also indorsed the glass company's note which plaintiff took when it made the loan. Mapes was, therefore, still a creditor of the glass company, and if, instead of the glass company's giving plaintiff the chattel mortgage as collateral to the note, it had given Mapes a mortgage to secure him for his indorsement, there could be no question that a preference, voidable at the option of the trustee, would have been created. But the effect of the transaction as it was actually carried out was as to Mapes' not essentially different . from that which would have resulted in the case supposed. The evidence warrants a finding that plaintiff made the loan and took the mortgage security not in good faith and in the ordinary course of business, but for the purpose in that way of indirectly securing to Mapes a preference by lessening his ultimate liability as indorser by the amount plaintiff might realize on its mortgage security. “ To constitute a preferential transfer it is immaterial to whom the transfer is made, if it be made for the purpose of paying the claims of one creditor in preference to those of others.” (Collyer Bankruptcy (8th ed.], 666; Matter of Lynden Mercantile

App. Div.]

Fourth Department, July, 1911. Company, 19 Am. Bank. Rep. 444; Matter of Beerman, i id. 431; Hackney v. Raymond Bros. Clarke Co., 68 Neb. 633, 637.) Though the decision of the trial court contains no specific finding that plaintiff made the loan to the glass company and took the mortgage security having reasonable cause to believe that by such transfer to it a preference in favor of Mapes was intended, yet it clearly appears from the opinion of the court that the court so determined. The evidence leads to co other conclusion, and, if necessary to support the judgment, such finding may be considered as now supplied. (Matter of Snedeker, 95 App. Div. 149.)

Counsel for appellant further urges that in any event it was entitled to recover certain advances made by it in connection with the mortgaged property after it had taken possession thereof under the mortgage and before the bankruptcy proceedings were begun. This claim is made under subdivision c of section 60 of the Bankruptcy Act (30 U. S. Stat. at Large, 562). Reference to this provision of the act discloses that the further credit given the debtor by the creditor, which may be set off as therein provided, must not only be given in good faith and without security, but must also result in property which becomes a part of the debtor's estate. (Collier Bankruptcy [8th ed.], 677.) Whether any recovery for such alleged expenditure could in any event be had in the present action it is unnecessary now to determine; for the proof does not disclose that any part thereof resulted in any advantage to, or increase of, the mortgaged property. Having apparently voluntarily relinquished possession of the mortgaged property without then making any claim on account of such expenditure and the proceeds of the sale being now in the possession of the trustee, it would seem that the proper method to collect such amount, if any, as it may be entitled to receive because of this claim would be by presentation thereof in the orderly course of the administration of the bankrupt's estate in the Bankruptcy Court.

All concurred, except McLENNAN, P. J., who dissented.

Judgment affirmed, with costs.

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