same. Judgment was rendered in his favor, and the defendant appealed to the district court. Judgment again being had for the plaintiff, this appeal has been taken. There is evidence that none of the property described in the complaint was set apart to the said Johnson as exempt, and that the same is in no way exempt to him under the laws of the state of North Dakota. There is also evidence that, prior to the levy by the sheriff and the filing of the petition in bankruptcy, that is to say, on the 14th or 15th day of February, 1911, the said sheriff consulted the trustee as a lawyer as to whether the warrant of attachment was all right and regular; that the said Gray told him if he had the papers to go along and serve them.

A. C. Lacy, for appellant.

Where property is attached, and within four months thereafter the debtor is declared a bankrupt, and his trustee asserts no right to the property in said attachment proceeding, it is immaterial, as between the attaching creditor and the bankrupt, whether the trustee in bankruptcy has or had a valid title to the property, as the debtor has no other right or title to the property than he had when he filed his petition in bankruptcy, at which time it was subject to attachment. Rochester Lumber Co. v. Locke, 72 N. H. 22, 54 Atl. 705; in Re Durham, 104 Fed. 231.

The trustee in bankruptcy is a purchaser of the property of the bankrupt, and he acquires only the title of the bankrupt, and can sell only such title as the bankrupt had. F. A. Ames Co. v. Slocomb Mercantile Co. 166 Ala. 99, 51 So. 994; Re Peacock, 178 Fed. 851.

The assignee of a bankrupt takes the property subject to all liens to which it was subject while in the hands of the bankrupt. Clason v. Morris, 10 Johns. 524; Phillips v. Helmbold, 26 N. J. Eq. 202; Blank v. Blank, 124 La. 832, 50 So. 745; Union Brewing Co. v. Inter-State Bank & Trust Co. 240 Ill. 454, 88 N. E. 997; Under bankruptcy act 1898, 30 Stat. at L. 566, chap. 541, § 70b; Bennett v. Etna Ins. Co. 201 Mass. 554, 131 Am. St. Rep. 414, 88 N. E. 335; Walter A. Wood Co. v. Eubanks, 95 C. C. A. 273, 169 Fed. 929.

The trustee is invested with no better title than the bankrupt had. Loveland, Bankr. 3d ed. § 175; Norcross v. Nathan, 99 Fed. 414; Rev. Codes 1905, § 6938; subd. 8, Comp. Laws, 1913, § 7537.

The Federal courts will neither interfere with property in the lawful possession of state courts, nor tolerate interference by the state courts with property in their custody. Rock Island Plow Co. v. Western Implement Co. 21 N. D. 608, 132 N. W. 351; Re Russell, 41 C. C. A. 323, 101 Fed. 248.

A state court is not devested of jurisdiction of an action to enforce a specific lien on property of a debtor, by the debtor's being adjudged a bankrupt pending the action, or by failure of the trustee in bankruptcy to intervene. Vance v. Lane, 26 Ky. L. Rep. 618, 82 S. W. 297; Black, Bankr. 66; Loveland, Bankr. 278; Brandenburg, Bankr. 183; Metcalf Bros. v. Barker, 187 U. S. 165, 173, 47 L. ed. 122, 126, 23 Sup. Ct. Rep. 67; Frazier v. Southern Loan & T. Co. 40 C. C. A. 76, 99 Fed. 707; Pickens v. Dent, 45 C. C. A. 522, 106 Fed. 653; Rock Island Plow Co. v. Western Implement Co. 21 N. D. 608, 132 N. W. 351.

The bankrupt law does not devest state courts of jurisdiction. There is nothing in the act which sanctions anything to the contrary. Eyster v. Gaff, 91 U. S. 521, 23 L. ed. 403; Burbank v. Bigelow, 92 U. S. 179, 183, 23 L. ed. 542, 543.

The filing of a petition in bankruptcy is not a caveat, injunction, or attachment against holders of prior liens or titles. Rathman v. Booth, 106 C. C. A. 253, 183 Fed. 914; Mueller v. Nugent, 184 U. S. 1, 14, 46 L. ed. 405, 411, 22 Sup. Ct. Rep. 269, 275; Eyster v. Gaff, 91 U. S. 521, 23 L. ed. 403; Jerome v. McCarter, 94 U. S. 734, 740, 24 L. ed. 136, 139; Reynolds v. Pennsylvania Oil Co. 150 Cal. 629, 89 Pac. 610.

A trustee failing to intervene in an action pending against a bankrupt is bound by the judgment in such action. Va. 1911, Under bankruptcy act, July 1, 1898, 30 Stat. at L. 544, chap. 541; Heckscher v. Blanton, 111 Va. 648, 37 L.R.A(N.S.) 923, 69 S. E. 1045; Brown v. Wygant, 163 U. S. 618, 623, 41 L. ed. 284, 286, 16 Sup. Ct. Rep. 1159; Kessler v. Herklotz, 132 App. Div. 278, 117 N. Y. Supp. 45; Remington, Bankr. §§ 1640-1644; Griffin v. Mutual L. Ins. Co. 119 Ga. 664, 46 S. E. 870; Herring v. Downing, 146 Mass. 10, 15 N. E. 116; Thatcher v. Rockwell, 105 U. S. 469, 26 L. ed. 949; Bank of Commerce v. Elliott, 109 Wis. 648, 85 N. W. 417; Vance v. Lane, 26 Ky. L. Rep. 619, 82 S. W. 297; Black, Bankr. 66; Loveland, Bankr. 278; Brandenburg,

31 N. D.-30.

Bankr. 183; Collier, Bankr. 7th ed. 222; Hubbard v. Gould, 74 N. H. 25, 64 Atl. 668; Hahlo v. Cole, 112 App. Div. 636, 98 N. Y. Supp. 1049; Eyster v. Gaff, 91 U. S. 521, 23 L. ed. 403; Norton v. Switzer, 93 U. S. 355, 23 L. ed. 903; Jerome v. McCarter, 94 U. S. 734, 737, 24 L. ed. 137, 138; Frazier v. Southern Loan & T. Co. 40 C. C. A. 76, 99 Fed. 707; Burbank v. Bigelow, 92 U. S. 179, 183, 23 L. ed. 542, 543; Re Klein, 97 Fed. 31; Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530, 33 L.R.A. (N.S.) 1061, 70 S. E. 126, 3 N. C. C. A.

1.

Where a court has jurisdiction, it has the right to decide every question which arises in the cause; and whether its decision be correct or not, its judgment, until reversed, is binding in every other court. Metcalf Bros. v. Barker, 187 U. S. 165, 174-176, 47 L. ed. 122, 126-128, 23 Sup. Ct. Rep. 67; Frazier v. Southern Loan & T. Co. 40 C. C. A. 76, 99 Fed. 707.

Gray & Myers, for respondent.

A lien for the purchase price of personal property sold and delivered does not exist in this state, merely by force of the exemption statutes, or by reason of any other law. It is the levy upon the property, either under attachment or execution, and while such property is still in the hands of and owned by the original vendee, that gives the lien. Northern Shoe Co. v. Cecka, 22 N. D. 635, 135 N. W. 177.

Where property has been levied upon under attachment within four months prior to the debtor's adjudication in bankruptcy, the attachment is annulled by the filing of petition in bankruptcy by the debtor and his adjudication as a bankrupt; and any lien brought into existence by the attachment is dissolved, and the title to the property vests at once in his trustee in bankruptcy. Bankruptcy act 1898, § 67f; Clarke v. Larremore, 188 U. S. 486, 47 L. ed. 555, 23 Sup. Ct. Rep. 363; First Nat. Bank v. Staake, 202 U. S. 141, 50 L. ed. 967, 26 Sup. Ct. Rep. 582; Re Wilkes, 112 Fed. 975; Staunton v. Wooden, 102 C. C. A. 355, 179 Fed. 61; Goodnough Mercantile Co. v. Galloway, 48 Or. 239, 84 Pac. 1049; Watschke v. Thompson, 85 Minn. 105, 88 N. W. 263; Hall v. Chicago, B. & Q. R. Co. 88 Neb. 20, 128 N. W. 645; Cavanaugh v. Fenley, 94 Minn. 505, 110 Am. St. Rep. 382, 103 N. W. 711; Alexander v. Wilson, 144 Cal. 5, 77 Pac. 706; Dittemore v. Cable Mill. Co. 16 Idaho, 298, 133 Am. St. Rep. 98, 101 Pac. 593;

Bank of Garrison v. Malley, 103 Tex. 562, 131 S. W. 1064; D. C. Wise Coal Co. v. Columbia Lead & Zine Co. 123 Mo. App. 249, 100 S. W. 680; Wallace v. Camp, 200 Pa. 220, 49 Atl. 942; Wood v. Carr, 115 Ky. 303, 73 S. W. 762; Armour Packing Co. v. Wynn, 119 Ga. 683, 46 S. E. 865.

The provision of our bankruptcy law is similar in effect to general insolvency laws, and operates ipso facto to dissolve the attachment. Baum v. Rapheal, 57 Cal. 361; Cerf v. Oaks, 59 Cal. 132; Lynch v. Roberts, 57 Md. 150; O'Neil v. Harrington, 129 Mass. 591; Lincoln v. Leshure, 132 Mass. 40; Nelson v. Winchester, 133 Mass. 435; Gay v. Raymond, 140 Mass. 69, 2 N. E. 782; Wright v. Dawson, 147 Mass. 384, 9 Am. St. Rep. 724, 18 N. E. 1; Wright v. Morley, 150 Mass. 515, 23 N. E. 232; North Star Boot & Shoe Co. v. Lovejoy, 33 Minn. 229, 22 N. W. 388; Wheelock's Petition, 18 R. I. 463, 28 Atl. 966; Bank of American Loan & T. Co. v. Burdick, 18 R. I. 481, 28 Atl. 967; Baldwin v. Buswell, 52 Vt. 57; Palmer v. Woodward, 28 Conn. 248; Johnson v. Bray, 35 Minn. 248, 28 N. W. 504; Owen v. Roberts, 81 Me. 439, 4 L.R.A. 229, 17 Atl. 403.

Such was the holding of the courts under the bankruptcy act of 1867. Duffield v. Horton, 73 N. Y. 219; Miller v. Bowles, 58 N. Y. 253.

Under such statutory provisions, the attachment becomes dissolved without the assistance or necessity of any order of the court out of which it issued. King v. Loudon, 53 Ga. 64; Duffield v. Horton, supra; Tichenor v. Coggins, 8 Or. 270; Sullivan v. Rabb, 86 Ala. 433, 5 So. 746; Conner v. Long, 104 U. S. 228, 26 L. ed. 723; Chapman v. Brewer, 114 U. S. 158, 29 L. ed. 83, 5 Sup. Ct. Rep. 799; International Bank v. Sherman, 101 U. S. 403, 25 L. ed. 866; Bracken v. Johnston, 4 Dill. 518, Fed. Cas. No. 1,761; Hill v. Harding, 93 Ill. 77; Barker v. McLeod, 14 Nev. 148; Johnson v. Bray, 35 Minn. 248, 28 N. W. 504; Weisenfeld & Co. v. Mispelhorn, 5 W. Va. 46.

The dissolution of the attachment lien operates to render the sheriff an involuntary bailee of the property for the owner; that is, his continued possession of the property would be the possession of the owner. 4 Cyc. 808 and 809; Rev. Codes 1905, § 6963, Comp. Laws 1913, $ 7562.

As against the bankrupt's trustee, the holding of the property by the sheriff, under such circumstances, would not be an adverse holding. Re Francis-Valentine Co. 36 C. C. A. 499, 94 Fed. 793.

The mere refusal of the sheriff to surrender the attached property does not render him an adverse claimant. Staunton v. Wooden, 102 C. C. A. 355, 179 Fed. 61.

The question of the right of title to property is not here involved. The property in question belonged to the bankrupt; upon his adjudication as a bankrupt, the title thereto at once vested in his trustee, who was then entitled to the physical possession of the same; and the form of this action represents the proper remedy. The moment the attachment was annulled and dissolved, that moment the property ceased to be in the custody of the law; and upon the sheriff's failure to surrender the same, replevin would lie. Ranft v. Young, 21 Nev. 401, 32 Pac. 490; Anderson v. Nunan, 5 Wash. 493, 34 Am. St. Rep. 875, 32 Pac. 107; Re Walsh Bros. 159 Fed. 560.

That portion of the judgment in the attachment suit, ordering the property in question to be sold by the sheriff to satisfy the money judgment rendered therein, was and is wholly void. The court had no jurisdiction, and such judgment, to that extent, is open to collateral attack. King v. Louden, 53 Ga. 64; D. C. Wise Coal Co. v. Columbia Lead & Zinc Co. 123 Mo. App. 249, 100 S. W. 680; Re Beals, 116 Fed. 530; Re Goldberg, 121 Fed. 581; Lehman S. & Co. v. E. Martin & Co. 132 La. 231, 61 So. 212.

The complaint in the action in which the attachment was issued contains no allegation as to the purchase price of the goods sold, nor is any issue as to that fact tendered by such pleading; nor is a judg ment in such form demanded. The judgment is simply for money on a debt, and was entered by default. The plaintiff there was only entitled to such relief as he had demanded in his complaint. Sobolisk v. Jacobson, 6 N. D. 175, 69 N. W. 46; Jewett Bros. v. Huffman, 14 N. D. 110, 103 N. W. 408; Myers v. Mott, 29 Cal. 359, 89 Am. Dec. 49; Rev. Codes 1905, § 7680, Comp. Laws 1913, § 8315; Sache v. Wallace (Sache v. Gillette) 101 Minn. 169, 11 L.R.A. (N.S.) 803, 118 Am. St. Rep. 612, 112 N. W. 386, 11 Ann. Cas. 348.

BRUCE, J. (after stating the facts as above). There can be no ques