subject to their order until full payment shall have been made for the same by the purchaser in money. In case the Big Four Implement Company shall take possession of any property as provided for in this contract, they or their agent shall have the right to sell the same at public or private sale, with or without notice, and at such place as they or their agent may deem best, and the proceeds arising from such sale. after paying the expenses of the same, shall be applied to the payment of the indebtedness due to said Big Four Implement Company. The appraisement of said property to be sold is hereby waived, but nothing in this clause will release the purchaser from making payment as herein agreed.”

The plow company's contract contains this clause: "It is understood and agreed that the goods sold under this contract may be resold by said party of the second part only in the ordinary course of trade at retail, and that the title to and ownership of all said goods until sold in the

be no ground for saying that the lien is in, existence before the bankruptcy. No case has been cited which so holds. In most of the cases referred to by the trustee the contract was never filed. In Rock Island Plow Co. v. Reardon, 222 U. S. 354, 56 L. ed. 231, 32 Sup. Ct. Rep. 164, the contract was not filed, yet the vendor had taken possession of the property covered by it before the bankruptcy. It appeared. however, in that case, that prior to that possession by the vendor another creditor had secured a lien by execution, which lien was preserved by the trustee for the benefit of the creditors. There is no authority for holding that a trustee can, in his own right, avoid such contracts as these when they have been filed before the bankruptcy. The decisions are to the contrary. Keeble v. John Deere Plow Co. 111 C. C. A. 668, 190 Fed. 1019 (5th Cir.) Part of the opinion of the court below in this case is found in Re Jacobson & Perrill (D. C.) 29 Am. Bankr. Rep. 603, 200 Fed. 812; Re Farmers' Co-op. Co. (D. C.) 202 Fed. 1005; Hartmanner aforesaid permitted, together with v. Emmerson-Brantingham Co. (D. C.) 203 Fed. 60. In Sturdivant Bank v. Schade, 115 C. C. A. 140, 195 Fed. 188 (8th Cir.), it appeared that a deed was made in 1902, and not recorded until August 8, 1906. A petition in bankruptcy was filed on October 8, 1906, and an adjudication had on October 31, 1906. The trustee came into possession of the real estate covered by the deed. The court considered that any judgment lien which the trustee was deemed to have was created subsequent to August 8, 1906. It is not necessary to determine whether, under the amendment of 1910, the lien of the trustee attached on the filing of the petition, or on the date of the adjudication, because the filing of the papers in this case preceded both dates.

The trustee claims also that the transaction constitutes a preference, saying that these contracts are, under the laws of Kansas, nothing more than chattel mortgages, and, not having been filed until within four months of the bankruptcy, they must be set aside on that ground. Matley v. Giesler, 110 C. C. A. 90, 187 Fed. 970, (8th Cir.). But they are not instruments of that character. They are in the usual form of conditional sale contracts of farm machinery. The implement company's contract contains this clause: "It is also agreed that the title to and ownership of, and the right to the immediate and exclusive possession, upon demand either oral or written, of all goods which may be shipped as herein provided, or during the current season, shall remain in, and their proceeds in case of sale shall be the absolute property of, the Big Four Implement Company and

the proceeds of those sold, shall be and remain in the party of the first part and subject to its order until full payment in cash shall have been made by the second party for said goods, or of said notes, and until any judgment rendered therefor or thereon shall be paid in full."

There are no other provisions in either contract limiting these clauses. They are therefore, under the rule in force in this circuit, conditional sale agreements. Dunlop v. Mercer, 86 C. C. A. 435, 156 Fed. 545 (8th Cir.); Re Pierce, 87 C. C. A. 537, 157 Fed. 755 (8th Cir.); Monitor Drill Co. v. Mercer, 20 L.R.A. (N.S.) 1065, 90 C. C. A. 303, 163 Fed. 943, 16 Ann. Cas. 214 (8th Cir.); Harkness v. Russell, 118 U. S. 663, 30 L. ed. 285, 7 Sup. Ct. Rep. 51; Bryant v. Swofford Bros. Dry Goods Co. 214 U. S. 279, 53 L. ed. 997, 29 Sup. Ct. Rep. 614. Are they conditional sale contracts under the laws of Kansas? The trustee says that they are not. He relies for that statement upon a single case, Christie v. Scott, 77 Kan. 257, 94 Pac. 214. It was there said: "At least since the enactment of § 4257 of the General Statutes of 1901, providing for the recording of such notes and contracts as chattel mortgages, these contracts should be regarded as on the same basis as chattel mortgages. Indeed the transaction, reserv ing the title and right of possession and right to retake the property, is intended and operates simply as a security for the debt. The transaction does not essentially differ from one in which the seller, at the time of making a sale, takes a promissory note for the purchase price, and at the same time, and before he has really trans

ferred the property sold, takes a mortgage thereon to secure the payment of the note, the purchase price. Under the law of this state such a mortgage conveys the title and right of possession to the mortgagee. In the one case the purchaser agrees unconditionally to pay a certain stated sum as the purchase price, and agrees that the seller shall hold the title to the property and right of possession until the debt is paid, and, if it be not paid, that the seller may take the property and sell it and apply the proceeds of the sale towards the payment of the note, implying that the proceeds may be less than the amount of the note. In the other case the purchaser executes a promissory note and unconditionally promises thereby to pay the purchase price, and, before he has actually received the property purchased, conveys the title and right of possession thereof to the seller, and further agrees that the seller may take possession of the property and sell it and apply the proceeds, less the expenses, toward the payment of the note. There is a theoretical distinction between the two transactions, but no practical difference."

were valid as to third persons, when there was no statute requiring them to be filed, while there was a statute requiring the filing of chattel mortgages. Sumner v. McFarlan, 15 Kan. 600; Hall v. Draper, 20 Kan. 137; Standard Implement Co. v. Parlin & O. Co. 51 Kan. 544, 33 Pac. 360; Moline Plow Co. v. Witham, 52 Kan. 185, 34 Pac. 751. The statutes of Kansas recognize the difference between a chattel mortgage and a conditional sale contract, by providing separate and different provisions for filing. The provision relating to chattel mortgages is found in § 5224 of the Compilation of 1909. Section 5237 relating to conditional sales is as follows: "Section 5237. Sale Notes Section 44. That any and all instruments in writing or promissory notes now in existence or hereafter executed evidencing the conditional sale of personal property, and that retain the title to the same in the vendor until the purchase price is paid in full, shall be void as against innocent purchasers, or the creditors of the vendee, unless the original instrument, or a true copy thereof shall have been deposited in the office of the register of deeds of the county wherein the property shall be kept, and shall be entered upon the records the same as a chattel mortgage, and when so deposited shall remain in full force and effect until the amount of the same is fully paid, without the renewal of the same by the vendor; and any conditional verbal sale of personal property re

erty sold shall be void as to creditors and innocent purchasers for value."

The only question which the court decided in that case was that a vendee in a conditional sale contract was liable on his promissory notes, although the creditor had retaken the property. The court said: "Authorities are cited from several states which hold that, where the contract at tached to a note shows the seller retained the title and right of possession of the prop-serving to the vendor any title in the property until payment was made, and took possession of the property under the contract, the consideration for the note thereby failed and he cannot recover upon the note. The contract in this case, however, goes further and provides that the seller may take possession of the property, remove and sell the same, and apply the proceeds toward the payment of the note, less the expense of such removal and sale. This is a plain recognition of the obligation to pay the note after the taking of the property."

It also said on page 262 of 77 Kan.: "In the case at bar the purchaser may have had full consideration in the use of the articles purchased for the balance remain ing unpaid on his notes. Under the contract attached to these notes, we hold that the plaintiff was authorized to take the property and sell it and apply the proceeds toward the payment of the notes, and that by so doing the law does not imply a revocation of the contract of sale, nor does the law imply that there remains no consideration for the payment of the balance due on the notes."

Conditional sale contracts have long been recognized in the law of Kansas. They

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Section 5226 requires a chattel mortgage to be renewed every two years. tion 5237, as is seen, provides that the effect of the filing shall continue, without renewal, until payment. Section 5232 provides for a public sale after notice under a chattel mortgage. There is no provision for such sale in the case of conditional sale contracts. The supreme court of Kansas did not, in our opinion, intend to hold in the case of Christie v. Scott that conditional sale contracts could not exist under the law of Kansas. So far as the effects of filing are concerned, they are similar to chattel mortgages; and this was all that was meant by what was said by this court in National Bank v. Carbondale Mach. Co. 115 C. C. A. 132, 195 Fed. 180.

These being contracts of conditional sale, there is no foundation for the claim that the filing of them within four months of the bankruptcy constituted a preference. There could be no preference without a transfer by the bankrupt of his property. If there were any transfer in this case it is evidenced by these instruments dated Decem