
    CONSTRUCTION OF THE BULK SALES STATUTES.
    Court of Appeals for Seneca County.
    John Fayes v. Peter Kieffer, Constable, etc., et al.
    Decided, March 22, 1921.
    
      Bulk Sales — Creditors Who File an Application to have a Trust Declared — Entitled to Benefit under Section 11103-1.
    Only such creditors as comply with Section 11103-1 may question a bulk sale of a stock of merchandise unless it is made in fraud of creditors.
   Hughes, J., Crow and Warden, JJ.,

concurring.

The plaintiff brought an action against the defendant as constable, to recover possession of a stock of goods held by the constable under a writ of attáehmént.

The judgment below was in favor of the defendant and the parties have in this court, by written agreement conceded the facts upon which the lower court entered this judgment, to be in substance as follows:

One Williams sold to plaintiff, his entire stock of goods, groceries and fixtures without complying with the bulk sales statutes of Ohio.

A creditor of Williams, about forty days after the sale to Williams, brought an action of attachment and the constable took possession of these goods thereunder, upon the theory that the sale of the goods by Williams to Fayes was void under Section 31103-1.

There were no steps taken by this creditor or any other creditor, in the court of common pleas or any other court having jurisdiction, to have the purchaser Fayes declared a trustee, accountable to the creditors of Williams.

If we had no bulk sales -statutes in Ohio, this sale and delivery of the goods to Fa3ms by AVilliams would be a valid sale, and ho creditor could attack Farms’ title without showing that it had been made in fraud of creditors, which is not claimed here.

We are quite clear that the only creditors for whom such a pur chaser as Fayes might- be made the trustee and held accountable to, are the creditors, and those creditors only, who file their application under Section 11103-1, General Code, in the proper court to have the trust declared.

That this is the correct interpretation of our bulk sales statutes we think is made manifest by the judicial pronouncements. 10 Ohio Appellate Report, 45; 31 O.C.A., —; 100 Ohio State, 58.

Upon authority of these two eases we are quite satisfied that the judgment of the court below is contrary to law and that the motion for new trial should have been allowed upon that ground.

Judgment reversed.  