(s) See cases in preceding note.

If the interests are vested in the bankrupt, the assignee takes them, although they are not in his possession; as, for example, a remainder or reversion. So if it rest on a contingency, the assignee takes subject to the contingency, or rather takes the right to recover if the contingency happens, (t)l pens that a bankrupt has already endeavored to extricate or save himself by raising what money he could by mortgages on whatever property he could use for that purpose. We have already said that the assignees may, in general, redeem all mortgages; (u) or they may sell the equities; this last has been the most usual way; but if there is any question whatever, the order or permission of the proper court should be obtained.

By this is meant, however, a legal contingency, and not a mere possibility, without some vested legal interest. Thus, any * beneficial contingency, however distant or improbable in fact, if it be actually vested, will go to the assignee; but if the insolvent be the only son of a father who is aged, single, wealthy, diseased, or even incurably insane, so that his enjoying the inheritance seems placed beyond any question, - if it does not, in fact, fall to him by the death of his father before he obtains his discharge, it belongs to him, and the assignees have no claim whatever. Equities of redemption are among those real interests which most frequently pass to the assignee. For it generally hap(t) The test seems to be a clear one, and easy of application. It is this: an interest (as has already been stated), which can be assigned or transmitted by the bankrupt himself, will pass to the assignee. The leading case on this subject is Higden v. Williamson, 3 P. Wms. 132. In this case, one seized of a copyhold estate, surrendered the premises to the use of his last will, and afterwards devised them to his daughter for life, then to trustees to be sold, and the money arising from the sale to be divided among such of his daughter's children as should be living at her death. Testator died; the daughter had issue, among others a son, who was a trader, and became bankrupt, and the commissioners assigned his estate. The bankrupt got his certificate allowed, and then his mother died. The assiguees brought their bill for the bankrupt's share of the money arising from the sale. The case of Jacobson v. Williams, I P. Wms. 385, having been relied on by counsel, Sir J. Jekyll, M. R., decreed for the plaintiffs, distinguishing the principal case from that of Jacobson v. Williams; for there the husband, the bankrupt, could not have come at his wife's portion by the aid of equity without making some provisions for her. and it was not reasonable the assignees, who stood but in his place, and derived their claim from him, should be more favored. Also, the Master said he laid his finger and chiefly grounded his opinion on the words of the statute 13 Eliz. chap. 7, § 2, which enacts "that the commissioners shall be empowered to assign over all, that the bankrupts might depart withal." Now here the son might, in his mother's lifetime, have released his contingent interest, so that the commissioners, by virtue of that act, are enabled to assign it, and consequently these assignees must be well entitled. The same test was admitted by Lord Hardwicke, in Jewson v. Moulson, 2 Atk. 417, though differing on the question whether the possibility in Heyden v. Williams was not of this class, which might be assigned at least in equity. Taylor v. Wheeler, 2 Vern. 565; Ex parte Goldney, 3 Deacon, 570; Ex parte Foster, 1 Mont. D. & De G. 418; Foster v. Hudson (on appeal), 2 id. 177; Moth v. Frome, Ambl. 394; Carleton v. Leighton, 3 Meriv. 667; French v. Carr, 2 Oilman, 664; Dommett v. Bedford, 6 T. R. 684; Perry v. Jones, 1 H. Bl. 30, in error, 3T.R. 88.

1 Where a will gave a life estate to the wife, at whose death the estate was to be converted into money, the income to be paid to a daughter, and at her death the principal to be divided equally among her heirs-at-law, the daughter's children take (luring her life such an interest in the fund as will pass to an assignee in bankruptcy subject to the same contingencies. Putnam v. Story, 132 Mass. 205. See Miuot v. Tappan, 127 id. 333. See Nichols v. Eaton, 91 U. S. 716, for a discussion of the subject of conditions restricting property from passing to an assignee in bankruptcy, and cases cited ante p. *474, note 1. - K.

An interesting question has arisen as to the effect of a want of record. Wherever this record is required when land is transferred, as is the case in all our States, it is obvious that no mortgage which is unrecorded can be made available for the mortgagee, or his assigns or representatives, against one who purchases the land in good faith, without notice. But, in England, where there is no general law of record, there is a strong disposition to hold a purchaser, - by copyhold, for example, - where there has been no surrender, and the legal title is incomplete, as a purchaser by contract, and therefore holding by good title against the assignees, (v) In this country, however, it seems to be settled by high authority, that the requirement of record is peremptory, and not to be set aside, (w) And an assignee would hold where the bankrupt had made a mortgage which was not recorded; and would not hold where a mortgage was made to him, and he had not recorded it, and a party claims to * hold it by subsequent transfer from the mortgagor, for value and without notice.1

We do not know in this country, or scarcely know, the equitable mortgage of the English law, which is created by a mere delivery of the title-deeds, (x) Still, we have equitable mortgages, or rights or liens, to which a court of equity would give such an effect And the court would probably enforce such a mortgage, at the suit of the assignee, or for his benefit, if no positive law made a record necessary.

If the bankrupt can maintain a writ of entry, or any action for land, or for the rents and profits of the land, the assignees take all these rights, (y)