Mr. George Wayne Anderson, of Richmond, Va., for petitioner.
Mr. James E. Cannon, of Richmond, Va., for respondents.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
November 4, 1909, the chancery court at Richmond upon petition filed the preceding day appointed a receiver for the Ainslie Carriage Company; February 3, 1910, the company was adjudged bankrupt in involuntary proceedings instituted November 6, 1909. At time of receiver's appointment taxes assessed upon the bankrupt's personal property for the years 1907, 1908 and 1909 were due the [249 U.S. 174, 175] city of Richmond for which it had not distrained, although having authority so to do. Respondents, landlords of the bankrupt, under express statutory authority, levied a distress warrant November 1, 1909, upon its goods and chattels on account of rent due for the period since April 1, 1908. The question is whether their claim is entitled to priority of payment over the taxes. The Circuit Court of Appeals answered in the affirmative. Bird v. City of Richmond, 240 Fed. 545, 153 C. C. A. 349.
The city, while not disputing that levy of the distress warrant gave respondents a valid lien, claims priority under section 64a, Bankruptcy Act-'The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district, or municipality in advance of the payment of dividends to creditors, and upon filing the receipts of the proper public officers for such payment he shall be credited with the amount thereof, and in case any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court.' Act July 1, 1898, c. 541, 30 Stat. 563 (Comp. St . 9648).
Respondents maintain: (1) That their lien, perfected through distraint, was fully protected by section 67d (as it read prior to 1910), Bankruptcy Act-'Liens give or accepted in good faith and not in contemplation of or in fraud upon this act, and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall not be affected by this act.' 30 Stat. 564. And (2) that under Virginia law such a lien is superior to the inchoate one which the city had for unpaid taxes but neglected to perfect by exercising the summary power granted by its charter to distrain therefor after September 1st in year for which levied.
It is not denied that respondents obtained a present valid lien upon the bankrupt's goods and chattels distrained November 1, 1909; nor is it now claimed this was annulled by adjudication of bankruptcy. That the [249 U.S. 174, 176] city of Richmond had no lien for past-due taxes upon these goods and chattels when the chancery court receiver took possession, we think must be regarded as settled by Jackson Coal Co. v. Phillips Line, 114 Va. 40, 49, 50, 75 S. E. 681, 684 (1912), and this notwithstanding differences between its charter, and that of Petersburg. The Supreme Court of Virginia there said:
Respondents therefore must prevail unless priority over their lien is given by section 64a to claim for taxes which, under state law, occupied no better position than one held by a general creditor. Section 67d, Bankruptcy Act, quoted supra, declares that liens given or accepted in good faith and not in contemplation of or in fraud upon this act, shall not be affected by it. Other provisions must, of course, be construed in view of this positive one. Section 64a directs that taxes be paid in advance of dividends to creditors; and 'dividend' as commonly used throughout the act means partial payment to general creditors. In section 65b (Comp. St. 9649), for example, the word occurs in contrast to payment of debts which have priority. And as the local laws gave no superior right to the city's unsecured claim for taxes we are unable to conclude that Congress intended by section 64a to place it ahead of valid lienholders.
New Jersey v. Anderson, 203 U.S. 483 , 27 Sup. Ct. 137, is not decisive of any point here contested; it only adjudged that New Jersey's claim was for a tax within the meaning of section 64a and entitled to be treated accordingly. See State of New Jersey v. Lovell, 179 Fed. 321, 102 C. C. A. 505, 31 L. R. A. (N. S.) 988.
The judgment below must be
Mr. Justice DAY and Mr. Justice CLARKE dissent.