It has been held or stated in a number of cases that insolvency of the defendant affords a sufficient reason of itself or in connection with other facts for the specific enforcement of a contract to transfer personal property though apart from the defendant's insolvency no right to specific enforcement exists.38 Such cases are often qualified however, by a statement in effect that if "insolvency stands alone as the oily real danger urged in plaintiff's complaint for equitable relief, then he must fail." 39 There seems to have been little discussion in these decisions of the effect upon such a doctrine of equity of a bankruptcy act which forbids preference in the American sense of the word.40 As an insolvent is not precluded by the Bankpaid in advance before the bankruptcy and had subsequently delivered the goods within four months prior to the filing of the bankruptcy petition he would have given a preference.44 For a court to decree specific performance of such a contract because of insolvency is not only a violation of the maxim that equality is equity but is nothing less than ordering the debtor to do something which the Bankruptcy Statute has forbidden him to do. Unless the situation is such that a court of bankruptcy would recognize and enforce a right on the part of the claimant to the property, if it should come into the hands of the court, it will always be improper for an insolvent debtor to transfer it without receiving a contemporaneous equivalent, and a fortiori it will be improper for a court of equity to decree the transfer.45 Moreover, as has been pointed out,46 an insolvent debtor is not necessarily execution proof, and on the other hand a solvent debtor, possibly may be. If the defendant's financial condition may properly have a bearing on the plaintiff's right to specific performance, not insolvency, but lack of property which can be seized should be the test. The conclusion, therefore, is:
38 Doloret v. Rothschild, 1 S. & S. 590, 598; Dowling v. Betjemann, 2 J. & H. 544; Hamilton v. National Bank, 3 Dill. 230; McNamara v. Home Land Ac. Co., 105 Fed. 202 (rev'd on other grounds in 111 Fed. 822, 49 C. C. A. 642); Dilburn v. Youngblood, 85 Ala. 449, 451, 5 So. 175; Southern Iron etc. Co. v. Vaughan, (Ala. 1918), 78 So. 212, L. R. A. 1918 E. 594; Treasurer v. Commercial Mining Co., 23 Cal. 390, 393; Williams v. Carpenter, 14 Colo. 477, 24 Pac. 658; Crawford v. Williams, (Ga. 1918), 99 S. E. 378; Parker v. Garrison, 61 111. 250; Ames v. Wilbeck, 179 111. 458,475, 53 N. E. 969; Clark v. Flint, 22 Pick. 231, 33 Am. Dec. 733; Rothholz v. Schwartz, 46 N. J. Eq. 477, 19 Atl. 312, 19 Am. St. 409; Zeiger v. Stephenson, 153 N. C. 528, 69 S. E. 611; Doty v. Doty, 171 N. Y. S. 852; Corn Bank v. Solicitors Co., 188 Pa. 330, 41 Atl. 536, 68 Am. St. Rep. 872; Allen v. Freeland, 3 Rand. 170, 174; Avery v. Ryan, 74 Wis! 591, 600, 43 N. W. 317; Glassbrenner v. Groulik, 110 Wis. 402, 85 N. W. 962. See also Neal v. Parker, 96 Md. 254, 57 Atl. 213.
39 Ridenbaugh v. Thayer, 10 Idaho, 662, 671, 80 Pac. 229, citing 26
Am. & Eng. Encyc. of Law (2d. ed.), 19; Strang v. Richmond, F. A C. K Co., 93 Fed. 71, 75; Law v. Bald-ridge, 32 Mo. App. 362, 366; Town-send v. Fenton, 32 Minn. 482, 484, 485, 21 N. W. 726; Miller v. Lorenti, 39 W. Va. 160, 174, 19 N. E. 391; McLaughlin v. Piatti, 27 Cal. 451, 463; Crawford v. Bradford, 23 Fla. 404, 406, 2 So. 782, 783; Heilman v. Union Canal Co., 37 Pa. St. 100; Cincinnati, etc., R. Co. v. Washburn, 25 Ind. 259, 261; McConnel v. Dickson, 43 111. 99. See also Hendry v. Whidden, 48 Fla. 268, 37 So. 571; Union Cottp. Co. v. Adolfson (Neb.), 171 N. W. 902; Gillett ». Warren, 10 N. Mex. 523, 62 Pac. 975; Iivesley v. Johnson, 45 Oreg. 30, 76 Pac. 13, 946, 65 L. R. A. 783, 106 Am. St. Rep. 647.
40 The English Bankruptcy Law does not forbid transfers by an insolvent debtor to his creditor unless the dominant motive of the debtor was to give the creditor an advantage. Williston, Cases on Bankruptcy (2d ed.), 245. The American statute seeks to prevent any transfer by insolvent debtors on account of preexisting obligations, by m^lriwg it an act of bankruptcy; and if bankruptcy supervenes within four months, makruptcy Act from making a transfer for any return, other than a preexisting debt, if honestly bargained for as an equivalent, there is no objection to the performance by him of a fair contract wholly executory on bath sides, if made in good faith,41 (and therefore no objection to the enforcement of it by a court of equity); but if the insolvent prior to performance on his part has already received the whole or part of the consideration for his own promised performance, so that a debt or obligation is due him, the situation is different. In that event insolvency can never properly be a make-weight for the decision of a court. In the law of bankruptcy an insolvent debtor's obligations by way of mere contract must be sharply distinguished from his obligations to surrender specific property because the legal or equitable ownership is in another. If under the facts of the case apart from the defendant's insolvency equity regards the plaintiff as having an interest in the property in question, specific enforcement of the obligation to transfer to him that interest should be granted,42 and if the defendant becomes bankrupt, the court of bankruptcy should recognize the plaintiff's interest in the property. Whatever the character of specific personal property, however readily purchasable for a money equivalent, the distinction is always vital in bankruptcy between a right to the return of specific property from the bankrupt estate and a claim for its money value. Therefore bankruptcy courts, as they have equity powers, always give in specie to a claimant of personal property of any kind the property itself, if he has an equitable property right, and do not relegate him to a claim for damages.43 But if a bankrupt had contracted to sell ordinary chattels, and still retained title and possession, they are assets of the estate, and if the bankrupt had been ing the transaction voidable, if the creditor had reasonable cause to before that a preference would be effected. The motive of the debtor is immaterial.
41 Tiffany v. Lucas, 8 Bky. Reg. 49; In re Strang, 8 Fed. 311; Remington on Bankruptcy (2d ed.), Sec. 1316.
42 As in Crawford v. Williams, (Ga. 1919), 99, S. E. 378, where the contract in question was an option on land.
43 This commonly occurs when the bankrupt has acquired property by fraud. See, e. g. In re American Knit Goods Mfg. Co., 173 Fed. 480, 97 C. C. A. 486; Gillespie v. Piles, 178 Fed. 886, 102 C. C. A. 120; In re Appel Suit & Cloak Co., 198 Fed. 322; In re Gold, 210 Fed. 410, 127 C. C. A. 142; Remington on Bankruptcy, Sec.1879.
1. Unless a contract for specific chattel property gives an equitable property right in the chattel, or unless the decree requires the plaintiff to make a full contemporaneous exchange for the property in question equity should not enforce the contract specifically because of insolvency. To do so is inconsist ent with bankruptcy legislation, which is based on a system of law itself built up by courts of equity.
2. Cases in bankruptcy and on risk of loss indicate that a
44 See quotation from Belding-Hail Mfg. Co. v. Mercer & Ferdon Lumber Co., 175 Fed. 335, 338, 99 C. C. A. 123, supra, Sec. 1419a, n. 34. It is true that Templeton v. Kehler, 173 Fed. 575; Mills v. Virginia Carolina Lumber Co., 164 Fed. 168, 90 C. C. A. 154, seem contrary authorities, but of these cases it is well said in Remington on Bankruptcy (2d ed.), Sec. 1316, that in order to prevent such a transfer from being preferential "It must always appear that title to the goods has already passed or that an equitable lien exists or that the money paid in advance is to be kept intact as a distinct fund to become the bankrupt's only on delivery of the things purchased."
45 See as supporting the argument of the text, Roundtree u. McLain, 4 Hempst. 245; City Fire Ins. Co. v. Olmsted, 33 Conn. 476; Chafee v. Sprague, 16 R. I. 189, 13 AtL 121.
46 G. L. Clark, 31 Harv. L. Rev. 275.
contract for the purchase of a chattel, whether paid for in advance or not, does not ordinarily give the buyer such a property right.
3. In the unusual case where owing to the nature of the chattel the buyer does by force of the contract acquire a property right, here only equity may doubtless in the exercise of its discretion decline to take jurisdiction in the absence of in-solvency of the debtor on the ground that the wrong can be compensated in damages.