Ingram

Appeal from an order of the District Court affirming an order of the referee in bankruptcy disallowing a claim of the state of Oreg’on as a claim entitled to priority and allowing same as a general claim against the estate of the above-named bankrupt.

Rulings of the District Court affirming the order of the referee disallowing the claim and holding that the right of the state was barred by a common-law assignment for the benefit of creditors were assigned as error. Appellee calls attention to the fact that appellant made no assignment of error on the holding of the lower court that the bankruptcy proceeding in itself defeated the claim of priority, and asks that the appeal he denied on that ground alone. As this is a proceeding in equity, and the whole matter in controversy is before us, we shall decide it upon its merits.

The facts, as shown in the findings of the referee, are as follows: On October 3, 1931, the bankrupt made a general assignment for the benefit of all of his creditors. Within four months of the dale of said assignment, an involuntary petition in bankruptcy was filed, and adjudication follo-wed. The state, through its agency, the game commission, filed a…

(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…