of the debts secured thereby, it has been proved by the bank as an unsecured claim against the bankrupt estate. The defendant signed other notes with Moore from time to time, in renewal and otherwise, payable to the First National Bank. After deducting payments made on the notes to the lastnamed bank, the aggregate sum due thereon was put into a new note dated November 21, 1892, signed in the same way. This note, amounting to $526.27, was paid by the defendant on June 4, 1900. These notes were all signed by the defendant to assist Moore in carrying on, building up, and equipping his livery stable and livery business, and as between them belonged to Moore to pay. On March 5, 1900, Moore gave the defendant another chattel mortgage on the livery stock. Later in the same month this mortgage was assigned by the defendant to the Passumpsic Savings Bank, by which it has hitherto been held and owned. On May 7, 1900, one John Ryan, a creditor of Moore, issued his writ against him, declaring in general assumpsit for $500 in damages, and caused the livery stock to be attached thereon. On the 16th day of the same month the defendant, acting under the advice of his attorney, and with the consent of Moore, took possession, under his mortgage of April 15, 1891, of all the livery property then on hand, and on the 11th day of June following he caused the same to be sold at public auction by a public officer in due form under the provisions of the statute. By arrangement between Moore's attorney and the defendant's attorney the property was thus to be sold, and the avails held by the officer in place of the property for the one who should prove to be entitled thereto; but neither Moore nor his attorney consented that the avails might be applied on the defendant's debts. On the 30th day of June, Moore filed his voluntary petition in bankruptcy. He was adjudged a bankrupt thereon, and the plaintiff was appointed trustee in bankruptcy of the estate, and he is now acting as such.

The petition in bankruptcy was filed within four months after the giving of the mortgage assigned to the Passumpsic Savings Bank; hence that mortgage became null and void under Bankr. Law July 1, 1898, c. 541, § 67e, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449]. For the purpose of defeating the effect of defendant's taking possession of the property under the mortgage, the plaintiff brought his petition to the court of bankruptcy, under the provisions of subdivision "f" of that section, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], for an order that Ryan's attachment might be preserved as a lien on the property for the benefit of the estate in bankruptcy; but, upon hearing, the petition was dismissed. Since the attachment was made within four months prior to the filing of the petition in bankruptcy, the lien created thereby could be preserved only by an order from that court for such purpose.

Without such order the attachment, like the last-named mortgage, became null and void. Section 67f. With the bank's mortgage and the attachment thus invalidated, the defendant's rights under his mortgage of April 15, 1891, stood the same as though there had been no subsequent mortgage given nor attachment made. It is urged that with the annulment of the attachment the property affected by it passed to the trustee as a part of the estate of the bankrupt under the express provisions of section 67f. There would be more force in this contention were it not for the provision that, by order of the court, an attachment lien may be preserved for the benefit of the estate. If there is no other lien on the property, there can be no occasion for such order; for, on the dissolution of the attachment, the property, unless exempt, would pass to the trustee anyway. It is only when the property for some reason may not otherwise pass to the trustee as a part of the estate that such an order is necessary. We think such is the purpose of that provision, and that, unless the lien is thus preserved, the property, as in the case at bar, may be held upon some other lien and not pass to the trustee. In re Sentenne & Green Co. (D. C.) 120 Fed. 436.

The question then arises whether the defendant, by virtue of his mortgage and the taking possession of the property thereunder, had a lien on the property taken and sold, paramount to the rights of the plaintiff as trustee under the bankrupt law. The plaintiff contends that the defendant did not have a lien valid against creditors under that act, and he seeks to recover the amount received by the defendant from the sale of the property. The parties to the mortgage are described therein as of St. Johnsbury, etc. Beyond what may be inferred from this fact, there is nothing in the mortgage showing where the property was located. The referee found that at the time this mortgage was given it was agreed and understood by the parties thereto that the mortgagor should sell or exchange any of the livery stock covered by the mortgage as he desired, and should thereby, and by purchase or otherwise, keep the stock good, so that the defendant's security should not be impaired, and that all after-acquired livery property should be covered by the mortgage as security for the debts specified therein; that, pursuant to such understanding and agreement, the mortgagor made sales, purchases, and exchanges of livery stock to such an extent that on May 16, 1900, when the defendant took possession of the property under his mortgage, there only remained two certain horses of the property on hand at the time the mortgage was given; that these sales, exchanges, and purchases were made by the mortgagor, sometimes without communication with or advice from the defendant, and frequently after consultation with him; that the livery

does the property covered by defendant's mortgage pass to the trustee under the provisions of subdivision "f," whereby all levies, judgments, attachments, or other liens obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, are deemed null and void in case he be adjudged a bankrupt, and the property affected thereby is deemed wholly discharged and released from such lien and passes to the trustee as a part of the estate.

The question of intent does not arise under theso provisions, but to come within them the lien in question must have been obtained through legal proceedings within the prohibited period. It cannot be said that the creation of a lien is the same as the enforcement of one already created. Assuming that the taking and sale of personal property by a public officer upon a statutory chattel mortgage under the provisions of V. S. 2265–2268, constitutes a legal proceeding within the meaning of the above provisions of the bankrupt law, as was recently held by Wheeler, J., in In re Parker P. Ball, Bankrupt (D. C.) 123 Fed. 164, it does not follow that the mortgage lien is thereby rendered null and void; for, instead of being a lien obtained through such legal proceedings, it is an existing lien by contract enforced by them.

As already seen, the defendant's lien under this mortgage at common law was one that gave him an absolute legal title after forfeiture, which occurred before possession was taken by him. But it was necessary that a change of possession be had to render his title operative against the other creditors of the mortgagor. Tobias v. Francis, 3 Vt. 425, 23 Am. Dec. 217; Woodward v. Gates, 9 Vt. 358; Rice's Assignees v. Hulett, before cited. After forfeiture the defendant had the right to sell the property in satisfaction of his debts. Wood v. Dudley, before cited; Jones, Chat. Mort. § 707; Freeman v. Freeman, 17 N. J. Eq. 44. And the sale, being with the mortgagor's consent, operated as a formal foreclosure of his equitable right of redemption. Jones, Chat. Mort. § 709.

The construction of section 67f has recently been under consideration in the case of Metcalf v. Barker, 187 U. S. 165, 23 Sup. Ct. 67, 47 L. Ed. 122, 9 Am. Bankr. R. 36. In an opinion delivered by Mr. Chief Justice Fuller, the court said: "In our opinion, the conclusion to be drawn from this language is that it is the lien created by a levy, or a judgment, or an attachment, or otherwise, that is invalidated, and that where the lien is obtained more than four months prior to the filing of the petition it is not only not to be deemed to be null and void on adjudication, but its validity is recognized. When it is obtained within four months, the property is discharged thereupon, but not otherwise. A judgment or de

cree in enforcement of an otherwise valid pre-existing lien is not the judgment denounced by the statute, which is plainly confined to judgments creating liens. If this were not so, the date of the acquisition of a lien by attachment or creditors' bill would be entirely immaterial."

Nor is the case of Wilson v. Nelson, 183 U. S. 191, 22 Sup. Ct. 74, 46 L. Ed. 147, upon which the plaintiff relies, to the contrary. There, Nelson borrowed the sum of money before the bankrupt law was enacted, and gave his promissory note therefor, with an irrevocable power of attorney executed by him attached thereto, authorizing any attorney of a court of record in his name to confess judgment thereon after its maturity. After the passage of the bankrupt act, the owner of the note caused judgment to be entered upon the note and the warrant of attorney. Upon this judgment an execution was issued, and the same was levied on Nelson's goods, which were subsequently sold, and the proceeds were applied in part payment of the judgment. These proceedings were wholly without Nelson's knowledge or consent. More than five days after the levy, but before the sale of the goods, a petition in bankruptcy was filed against Nelson, and the sole question before the court was whether he had committed an act of bankruptcy within the meaning of section 3, cl. 3 (30 Stat. 546 [U. S. Comp. St. 1901, p. 3422]), of the bankrupt law. In considering the case, the court discussed to some extent the provisions of section 67, subd. f. In that case, unlike the one at bar, no lien existed upon the bankrupt's property until one was created by the levy of the execution, which brought it expressly within the terms of subdivision "f." It is there said that the bankrupt act makes the result obtained by the creditor, and not the specific intent of the debtor, the essential fact; and that the levy, which was in a proceeding begun within the four months, would be dissolved by the adjudication in bankruptcy, because its existence and enforcement would work a preference; and it was held that the debtor, by failing to vacate or discharge the preference within five days before the sale of the property on the execution, committed an act of bankruptcy.

Some or all of the amount due from the mortgagor to the defendant for rent of buildings accrued after the giving of the mortgage, and the plaintiff contends that so much thereof as did thus accrue is not covered by the mortgage, because rent is not a "contemplated loan and liability" within the meaning of that expression in the affidavit attached to the mortgage. But when the defendant is considered as standing upon a mortgage at common law, no affidavit is necessary; and regarding the sufficiency of the description of the debts, obligations, and undertakings intended to be secured thereby, the rules governing similar questions arising in connection with real estate mortgages are

applicable. Under the holdings of this court in cases involving such mortgages, it is clear that the description is sufficient in this regard. McDaniels v. Colvin, 16 Vt. 300, 42 Am. Dec. 512; Seymour v. Darrow, 31- Vt. 122; Soule v. Albee, 31 Vt. 142.

Nor can we agree with the plaintiff's contention that the defendant cannot avail himself of this security to save him harmless and indemnified from paying the note for $2,510.75 at the Passumpsic Savings Bank, signed by him as surety, because the defendant's liability thereon is not more specially described in the mortgage. In this respect the condition of the mortgage is more specific than the one before the court in Soule v. Albee. There the condition was, "should also pay all sums that the petitioners or A. G. Soule should become liable to pay for Curtis B. Albee in consequence of signing or otherwise." This condition was held sufficient to cover an agreement whereby the mortgagee, at the mortgagor's request, verbally agreed with the mortgagor's debtor, who had been summoned as a trustee in a suit against the mortgagor, that if said debtor would pay this debt to the mortgagor, he, the mortgagee, would pay him whatever judgment should be rendered against him as trustee in that suit. Whether the description meets the requirements of the law regarding statutory chattel mortgages, we need not inquire. The defendant cannot be deprived of his security in that behalf until the note at the bank has been paid, or he has in some other manner been fully discharged or released as surety thereon.

In considering the questions before us, we have treated all evidence introduced by the plaintiff, to which defendant excepted, as properly in the case, without regard to its ·legal admissibility.

The pro forma judgment for the defendant to recover his costs is affirmed.

ADMINISTRATION-PERSONS PRESUMED TO BE DEAD-CONSTITUTIONAL LAW-APPOINTMENT OF ADMINISTRATOR.

1. Act June 24, 1885 (P. L. 155), relating to the grant of letters of administration on the estates of persons presumed to be dead by reason of their long absence from their former domicile, is not unconstitutional as depriving such owner of his property without due process of law, where the statute does not create the presumption of death, but gives the orphans' court express jurisdiction to inquire into and judicially determine that fact.

2. Act June 24, 1885 (P. L. 155), relating to grant of letters of administration on estates of persons presumed to be dead is not open to an objection that it is not due process of law for want of personal service on the absentee, the proceedings provided for in such act being strictly in rem, and affecting only property in the state, and saving the rights of the former owner should it subsequently appear that he is alive, and the true owner still.

3. The appointment of an administrator under Act June 24, 1885, for the estate of a person presumed to be dead, is a judicial act by a competent tribunal, and is valid until revoked by the direct proceedings provided for in the statute.

Appeal from Superior Court,

Action by Margaret Cunnius, now Margaret Smith, against Reading School District. Judgment for plaintiff was affirmed by the superior court, and defendant appeals. Reversed.

Argued before MITCHELL, DEAN, BROWN, MESTREZAT, and POTTER, JJ.

Frederick W. Nicolls, for appellant. Caleb J. Bieber, for appellee.

MITCHELL, J. The regulation of the title and devolution of property within its limits is within the control and jurisdiction of the state. The rules of evidence for the judicial ascertainment of facts in its courts, and, as a corollary, the establishment of legal presumptions, are also within the control and jurisdiction of the state. Bearing these two axioms in mind, let us examine the act of June 24, 1885 (P. L. 155), which is involved in the present case. It provides that whenever application shall be made for letters of administration on the estate of any person supposed to be dead on account of absence for seven or more years, the register of wills shall certify the application to the orphans' court, and that court, if satisfied that the applicant would be entitled to such letters were the supposed decedent in fact dead, shall cause advertisement to be made of the application, and on the day fixed shall "hear evidence concerning the alleged absence of the supposed decedent, and the circumstances and duration thereof." If, upon such hearing, the court shall be satisfied that the legal presumption of death is made out, it shall so decree, and forthwith cause notice to be published in a newspaper of the proper county, "and also, when practicable, in a newspaper published at or near the place beyond the commonwealth where, when last heard from, the supposed decedent had his residence." At the end of 12 weeks from the last insertion of this notice, if no contrary evidence be forthcoming, the court may order the register to issue the letters of administration, "and the said letters until revoked, and all acts done in pursuance thereof, and in reliance thereupon, shall be as valid as if the supposed decedent were really dead." It is further provided that the orphans' court may at any time revoke the letters on proof that the supposed decedent is in fact alive, whereupon the administrator shall file his account, and turn over the property to the owner, who may also recover any moneys or property received by any person as widow, or next of kin, or heir. And for protection of the owner as to such persons it is

3. See Executors and Administrators, vol. 22, Cent. Dig. § 178.

required that no distribution shall be made to them until security is given, approved by the court, for refunding, with interest, in case the supposed decedent shall in fact be alive, and in case of inability to give such security the money shall be invested under the control of the court, and the interest only paid to the distributee. Section 6 contains provisions as to suits by or against the administrator, and the substitution of the supposed decedent after revocation of the letters. This section will be referred to later on.

From this summary it appears that the act establishes a system, carefully wrought out with due regard to all rights involved, for the administration of estates or property whose owner is legally presumed to be dead, but whose death cannot at the time be proved with absolute certainty. It is a wise and just statute of sequestration and conservation of property which is without a known owner, whether the late owner has abandoned it (as in the present case), or the title has devolved upon others by his death, not being presently ascertainable. The statute steps in to provide a caretaker, and to vest the present benefit in those who appear to be the owners, with as complete provision as is practicable for the re-establishment of the rights and possession of the absentee on his reappearance. That the state must have some such power is manifest. The property is within its jurisdiction and under its protection. It is not in the interests of order or good government that property should lie ownerless, or open to conflicting claims. If the absentee be really dead, it is conceded that the proceeding is unimpeachable. But if he be dead, so far as can be learned, though death be not absolutely proved, yet the effect to the state is the same. There is property in its charge without a recognized owner. must have power to meet such a case, or one of its chief functions as a government must go unperformed.

It

The consequences of a different view are too serious to be disregarded. If an intruder enters on land of the absentee, and holds open and hostile possession for 21 years, the absentee's title will be gone. So as to personal property of which another holds or acquires wrongful possession for six years. And in the meantime how is the heir or the next of kin, who, so far as can be known, is the real owner, to assert his right, or prevent his title from slipping away before his eyes, unless he may rely upon the presumption? Unless the state can appoint a representative of the unknown owner, whether called administrator, curator, or other name, is immaterial, such owner's interests must go unprotected. And in appointing such representative the state must be allowed to act upon the presumption, for that is all that can be had in the case. Unless the statute, in giving such authority, clearly violates rights or transgresses constitutional restrictions, it is our duty to sustain it. The su56 A.-2

perior court held the act unconstitutional, as depriving plaintiff of her property without due process of law, under the fourteenth amendment of the Constitution of the United States. In so holding the court felt itself bound by the decision of the Supreme Court of the United States in Scott v. McNeal, 154 U. S. 34, 14 Sup. Ot. 1108, 38 L. Ed. 896. If that case really governs the present, we must, of course, render willing obedience to its supreme authority. But we do not so regard it. The exact point there decided was that a sale by an administrator appointed under a state law for a person who had been absent, unheard of, for seven years, but who was in fact alive, passed no title, even to an innocent purchaser. The ground of the decision was that the probate court had no jurisdiction to appoint an administrator for a person who was alive, and, there being no jurisdiction over the subject-matter, the appointment of an administrator and all the acts done under such appointment were void. This is in entire accord with our own decision in Devlin v. Commonwealth, 101 Pa. 273, 47 Am. Rep. 710, which is cited approvingly by Mr. Justice Gray in his opinion: "The estate of a person supposed to be dead is not seized or taken into custody of the court of probate upon the filing of a petition for administration, but only after and under the order granting that petition; and the adjudication of that court is not upon the question whether he be living or dead, but only upon the question whether, and to whom, letters of administration shall issue. The local law on the subject * does not appear to us to warrant the conclusion that . the probate court is authorized to conclusively decide, as against a living person, that he is dead, and his estate, therefore, subject to be administered and disposed of by the probate court. On the contrary, that law, in its very terms, appears to us to recognize and assume the death of the owner to be a fundamental condition and prerequisite to the exercise by the probate court of jurisdiction to grant letters testamentary or of administration upon his estate." Page 47, 154 U. S., page 1113, 14 Sup. Ct., 38 L. Ed. 896. "Under such a statute, according to the overwhelming weight of authority, as shown by the cases cited in the earlier part of this opinion, the jurisdiction of the court to which is committed the control and management of the estates of deceased persons, by whatever name it is called-ecclesiastical court, probate court, orphans' court, or court of the ordinary or surrogate-does not exist or take effect before death. All proceedings of such courts in the probate of wills and the granting of administrations depend upon the fact that he is dead, and are null and void if he is alive." Page 48, 154 U. S., page 1113, 14 Sup. Ct., 38 L. Ed. 896. The cases referred to in this extract are numerous, but are founded on the same view that the essential jurisdictional fact for the action of the