The trustee in bankruptcy of Marvin K. Dunagan, one-time farm implement dealer at Willcox, Arizona, appeals from the District Court’s judgment denying the trustee’s claim to certain equipment and parts, or the value thereof, which were repossessed from the bankrupt by appellee Massey-Ferguson under certain conditional sales contracts within the four-month period next preceding the filing of Dunagan’s voluntary petition in bankruptcy.

The material facts, as found by the District Court, are not in dispute, and may be summarized as follows: The bankrupt came into possession of the equipment and parts in question pursuant to a “Dealer Wholesale Note and Invoice”, and certain “Dealer Sales Agreements” between Massey-Ferguson and the bankrupt, which admittedly amounted to contracts of conditional sale under Arizona law. On April 12, 1963, some two months prior to bankruptcy, appellee repossessed the personal property in controversy “under a’claim of ownership” as seller, by virtue of the conditional sale contracts which had reserved title in the appellee until full payment of the purchase price.

The contracts of conditional sale were never filed for record in Arizona. The bankrupt had never sold or agreed to sell any of the property to any purchaser, and none of the bankrupt’s creditors had placed any lien thereon, prior to appellee’s repossession. Moreover, at the time the property was so repossessed by appellee, the bankrupt was insolvent and appellee had reasonable cause to believe that the bankrupt was insolvent.

The sole question presented upon this appeal is whether the District Court correctly decided that the trustee was not entitled to reclaim the repossessed property under §§ 70 sub. c, or 70 sub. e(l), or 60, sub. b, of the Bankrupt Act. [ 11 U.S.C. §§ 110 , sub. c, 110, sub. e(l), 96, sub. b.]

Turning first to § 70, sub. c, we note that the oft-called “strong-arm” clause of the section provides that:

We note also that the Bankruptcy Act leaves the § 70, sub. c question, whether “a creditor of the bankrupt could have obtained a lien” on the property at the date of bankruptcy, to be determined by State law, here the law of Arizona. [See: Corn Exchange Nat. Bank & Tr. Co., Philadelphia v. Klauder, 318 U.S. 434 , 63 S.Ct. 679 , 87 L.Ed. 884 (1943); Bryant v. Swofford Bros. Dry Goods Co., 214 U.S. 279 , 29 S.Ct. 614 , 53 L.Ed. 997 (1909); In re Rosenberg Iron & Metal Co., 343 F.2d 527 (7th Cir. 1965); In re Kellett Aircraft Corp., 173 F.2d 689 (3rd Cir. 1949).]

Arizona law recognizes as valid contracts of conditional sale of personal property which reserve title to the goods in the seller. [Ariz.Rev.Stat. §§ 44-301, 44-304.] However, such contracts are made subject to § 44-305 which declares that:

In Castaneda v. National Cash Register Co., 43 Ariz. 119 , 29 P.2d 730 (1934), the Arizona Supreme Court considered the phraseology of § 2890 of the Revised Code of 1928, which is identical in relevant portions to the above-quoted provisions of § 44-305 of the Revised Statutes, and held that the phrase “and is void as to all persons except for the buyer” could not be reconciled with the provisions immediately preceding it. In this connection, the Arizona Court said:

Section 5 of the Uniform Conditional Sales Act was originally enacted in Arizona as § 5, ch. 40 of the Laws of 1919, the language of which was identical to later § 2890; except that § 5 did not contain the phrase “and is void as to all persons except for the buyer”, but simply provided that the reservation of title in a conditional seller was void only as against purchasers and lien creditors who acquired their interests before the contract was filed for public record. And in the Castaneda case, the Arizona Court cited with approval the following comments of the Commissioners on Uniform State Laws:

In the case at bar, although the conditional sale agreements were never filed for public record, admittedly no buyer purchased any interest in the property and no creditor obtained a lien thereon prior to appellee’s repossession. Arizona law treats repossession as the legal equivalent of filing for public record; and justly so, since no creditor or purchaser could thereafter rely upon the debtor’s apparent ownership of the property. [Moore v. Chilson, 26 Ariz. 244 , 224 P. 818 (1924).]

Under Arizona law, then, the only person who could defeat appellee’s rights in the repossessed property here would be required to qualify, either as a purchaser of the property without notice of the conditional sale agreements, or as a creditor who had acquired a lien by attachment or levy without such notice, before the repossession occurred.

As the Court explained in Lewis v. Manufacturers Nat. Bank, 364 U.S. 603 , 81 S.Ct. 347 , 5 L.Ed.2d 323 (1961), the trustee acquires under § 70, sub. c of the Act the rights of a hypothetical creditor “then holding a lien” as of the time of filing of the petition in bankruptcy; but the trustee may not reach back to some “anterior point of time” and assert the rights of a creditor at such “anterior point of time”. The District Court correctly concluded, therefore, that § 70, sub. c of the Act was inapplicable at bar, since no creditor, actual or hypothetical, “could have obtained a lien” on the property “at the date of bankruptcy”. [Cf. Pacific Finance Corp. v. Edwards, 304 F.2d 224 (9th Cir. 1962).]

Furthermore, as the learned District Judge pointed out, the absence of any purchaser or attaching creditor prior to repossession prevents the trustee from recovering under § 70, sub. e(l) of the Act [ 11 U.S.C. § 110 , sub. e(l)], no transfer of the repossessed property having been made or suffered by the debtor which was “fraudulent as against or voidable for any other reason by any creditor of the debtor” under the law of Arizona.

There remains so be considered, then, what rights the appellant trustee had under § 60 of the Bankruptcy Act. [ 11 U.S.C. § 96 .] The precise question is whether appellee’s repossession of the property amounted to voidable preference within the provisions of § 60.

Section 60, sub. a(l) defines a preference to be:

And § 60, sub. b declares such a transfer voidable at the suit of the trustee, if the creditor knew or had reasonable cause to believe that the debtor was insolvent at the time the transfer was made. [ 11 U.S.C. § 96 , sub. b.]

Under the 1910 version of § 60, sub. b [ 36 Stat. 838 ], the Supreme Court held that tardy filing for public record of an agreement of conditional sale, within the four-month period preceding bankruptcy, did not constitute a preferential transfer. [Bailey v. Baker Ice Machine Co., 239 U.S. 268 , 36 S.Ct. 50 , 60 L.Ed. 275 (1915).] The rationale of the court’s holding was that, under a conditional sales contract, where title to the property does not pass to the buyer until fulfillment of the conditions of sale, the seller’s later repossession of the property will not operate as a “transfer” of “any of the property of a debtor”, even though the agreement of conditional sale was never filed for public record. The Court observed that: “The property to which it [the contract] related was not [the conditional vendee’s], but [the conditional vendor’s]”. [Bailey v. Baker Ice Machine Co., supra, 239 U.S. at 274 , 36 S.Ct. at 53 , and see: Finance & Guaranty Co. v. Oppenhimer, 276 U.S. 10 , 48 S.Ct. 209 , 72 L.Ed. 443 (1928); Guaranty Security Corp. v. Reed, 299 F. 265 (1st Cir. 1924); Big Four Implement Co. v. Wright, 207 F. 535 (8th Cir. 1913).]

However, the 1950 and 1952 amendments to the Bankruptcy Act convince us that the Bailey doctrine no longer subsists. In 1950, the Congress amended § 60 to define more precisely the time of a “transfer” within the meaning of § 60, subs, a and b, by providing in § 60, sub. a(2) that:

Section 60, sub. a(7) (I) allows the creditor twenty-one days, unless the State law fixes a shorter period of time, within which to perfect the creditor’s interest so that no lien described in § 60, sub. a(7) (II) can become superior to the creditor’s rights in the property. [ 11 U.S.C. § 96 , sub. a(7) (I).] And § 70, sub. a(7) (II) provides:

In 1952, the Congress amended § 1(30) to include a contract of conditional sale within the statutory definition of a “transfer” by expressly declaring that “the retention of a security title to property delivered to a debtor shall be deemed a transfer suffered by such debtor.” [ 66 Stat. 420 (1952), 11 U.S.C. § 1 (30).]

The 1950 and 1952 amendments to the Bankruptcy Act do not, it is true, explicitly disavow the Bailey doctrine that rights embraced within a title interest retained by the conditional seller are not “property” of the vendee-debtor, but the legislative history of the amendments persuades us that the Congressional intent was to repudiate unequivocally the Bailey rationale. Before recalling the Congressional reports on the amendments, we should first refer to an earlier footnote to the 1943 opinion in Corn Exchange Nat. Bank & Tr. Co., Philadelphia V. Klauder, supra, 318 U.S. 434 , 63 S.Ct. 679 , 87 L.Ed. 884 , wherein the Court referred to the testimony of Professor McLaughlin at Congressional hearings held prior to the 1938 Chandler-Act amendments, as follows:

The 1949 Report of the Judiciary Committee of the House (H.R. Report No. 1293, 81st Congress, 1st Sess., to accompany S. 88), dealing with the proposed 1950 amendments, declared:

Next came the Senate and House report on the 1952 legislation, to “clarify” the definition of “transfer” in § 1(30) of the Bankruptcy Act, stating:

Accordingly, appellee’s retained “security title” here must be deemed to be “a transfer * * * of the property of a debtor * * * suffered by such debtor” [§ 60, sub. a(2); 11 U.S.C. § 96 , sub. a(2)] on April 12, 1963, when appellee repossessed the property in controversy. For prior to this repossession, the property was subject to the claims of all purchasers from and all creditors of the buyer who might have obtained a lien thereon in accordance with the law of Arizona, without actual or constructive notice of the seller’s retained “security title”, inasmuch as the conditional sale agreements covering the property had never been filed for public record as required by Arizona law. [Ariz.Rev. Stat. § 44-305.]

We hold, therefore, that appellee’s failure to file the contracts of conditional sale for public record, as required by § 44-305 of Arizona’s Revised Statutes, made the later repossession of the property in question a transfer of the debtor’s interest in such property, “for or on account of an antecedent debt”, created at the time of the making of the contract of conditional sale, and thus depleted the estate of the bankrupt to the extent of the value of the debtor’s property rights so transferred.

Next it is necessary to consider whether this transfer, so “suffered by such debtor” enabled appellee to obtain a greater percentage of its debt than some other creditor of the same class, in contravention of § 60 of the Act. Appellee contends that the “class” referred to in § 60, sub. a includes only creditors holding claims arising from contracts of conditional sale, and not unsecured creditors of the bankrupt. We do not agree. While “class” is not expressly defined in the Bankruptcy Act, it appears that the general purpose of § 60 was not only to enable the trustee in bankruptcy to strike down “secret liens”, but also to require prompt perfection of security interests in order to provide timely and adequate notice to other creditors. [See: Corn Exchange Nat. Bank & Tr. Co. v. Klauder, supra, 318 U.S. at 438-439 , 63 S.Ct. 679 ; Bankruptcy Act § 60, sub. a(6), 11 U.S.C. § 96 , sub. a(6); 3 Collier, Bankruptcy (14th Ed.) § 60.38(1).] Manifestly, if conditional vendors were the only creditors to be included within the “class” in question here, those purposes would be largely defeated.

It follows then that repossession by the appellee of the property subject to the conditional sale agreements, under the circumstances here and within the four-months period next preceding filing of the petition in bankruptcy, must be held to be a preference under § 60, sub. b of the Bankruptcy Act. [ 11 U.S.C. § 96 , sub. b]

This conclusion is buttressed by the fact that, since the 1950 and 1952 amendments to the Bankruptcy Act, both the Court of Appeals of the Second Circuit and the Court of Appeals of the Fifth Circuit have in effect held that the doctrine of Bailey v. Baker Ice Machine Co., supra, 239 U.S. 268 , 36 S.Ct. 50 , 60 L.Ed. 275 ; has been “repealed”. [See: Sims v. Capitol Refrigeration Co., Inc., 294 F.2d 111 (2d Cir. 1961); In re Morasco, 233 F.2d 11 (2d Cir. 1956); B. F. Avery & Sons Co. v. Davis, 226 F.2d 942 (5th Cir. 1955).] Furthermore, as we read them, the reported decisions of the District Courts on the subject are in accord with this view. [See; Brown v. American Trust Co., 186 F.Supp. 249 (N.D.Cal.1960); In re Huston, 143 F.Supp. 40 (N.D.Ohio 1956); In re Kaufman, 142 F.Supp. 759 (W.D.Ky.1956); In re Burton, 120 F.Supp. 148 (D.Md.1954); and see Dinkelspiel v. Garrett, 96 F.Supp. 800 (W.D.Ark.1951).]

On the other hand, the Court of Appeals of the First Circuit appears to continue of the opinion that the Baker doctrine still rules a situation such as that presented at bar. In so holding, the First Circuit seems to rely upon Finance & Guaranty Co. v. Oppenhimer, supra, 276 U.S. at 12 , 48 S.Ct. 209 , which we think must surely fall with Baker in the face of the 1952 Congressional declaration, in § 1(30) of the Act, that “retention of a security title to property delivered to a debtor shall be deemed a transfer suffered by such debtor.” [See Carina Mercury, Inc. v. Igaravides, 344 F.2d 397 (1st Cir. 1965).]

Our high regard for the acumen of the Court of Appeals of the First Circuit gives us pause, but we remain nonetheless convinced that both reason and policy, as well as legislative history, sustain our conclusion that, under the circumstances at bar, repossession by a conditional seller of property subject to a conditional sale agreement, within the four-months period next preceding filing of the petition in bankruptcy, constitutes a preference recoverable by the trustee under § 60, sub. b of the Bankruptcy Act. [ 11 U.S.C. § 96 , sub. b.]

This view finds further support in the fact that the result avoids the anomaly of allowing the security interest of a conditional seller to stand invincible while, under similar circumstances, the security interest of a chattel mortgagee is held voidable by the trustee in bankruptcy. [Compare: McKnight v. M. & J. Finance Corp., 247 F.2d 112 (4th Cir. 1957) and England v. Moore Equipment Co., 94 F.Supp. 532 (N.D.Cal.1950), with Bailey v. Baker Ice Machine Co., supra, 239 U.S. 268 , 36 S.Ct. 50 , 60 L.Ed. 275 . See L. Hand, J., dissenting in In re Lake’s Laundry, Inc., 79 F.2d 326, 328-329 , 102 A.L.R. 247 (2nd Cir. 1935); Senate Report No. 1395, supra, 1952 U.S.Code Cong, and Admin.News, at p. 1963; 3 Collier, Bankruptcy (14th Ed.) § 60.43(2).]

The judgment appealed from is reversed and the cause remanded for further proceedings not inconsistent with this opinion.