Jackman v. Eau Claire Nat. Bank, 125 Wis. 465. renders it unnecessary to discuss further questions 4 and 5, or to consider complaints, made as to instructions given in respect thereto. 4. Error is assigned on the instruction to the effect that all the creditors belonged to one class. Whether that is right or wrong does not seem to in any way concern the case. This action, as we have indicated, is simply one in trover to recover the value of property which, as is alleged, was, in fraud of the bankrupt act, wrongfully converted by defendant to its own use. Whether there was one or more classes of creditors, and in what manner the property sought to be recovered. would, if the suit were successful, be administered, did not vary in the slightest degree the legal rights of the plaintiff. If the property was obtained by the defendant in fraud of the bankrupt act, plaintiff was entitled to recover the same, and this is the only question involved. 5. Error is assigned because of the refusal to direct a verdict for defendant and in denying defendant's motion to correct the special verdict and for judgment in favor of defendant. A vigorous argument is made by counsel for defendant against the right of the trustee to maintain this action in the state court, relying mainly upon two Wisconsin cases. Brigham v. Claflin, 31 Wis. 607, and Bromley v. Goodrich, 40 Wis. 131. These cases were decided under the bankrupt act of 1867, which was quite different from the law under which the present case was brought; and it appears that one of the reasons given for denying the right of the state court to take jurisdiction was that the federal courts had exclusive jurisdiction in such cases, and that conflicts of interest might arise. Under the bankrupt act of 1898 the supreme court of the United States in Bardes v. Hawarden Bank, 178 U. S. 524, 20 Sup. Ct. 1000, held that the United States courts had no jurisdiction over suits similar to the one before us unless by consent of the proposed defendant; and that in the absence of express prohibition the state courts lose none of their juris Jackman v. Eau Claire Nat. Bank, 125 Wis. 465. diction to litigate questions arising between the trustee in bankruptcy and any adverse claimant concerning transfers of property claimed to be made in fraud of the bankrupt act. That even jurisdiction conferred upon the United States courts does not divest the state courts of jurisdiction in such cases. Bardes v. Hawarden Bank, supra. Under the above decision at the time this action was commenced the United States courts had no jurisdiction of the action, and unless it could be brought in the state court the plaintiff was without a remedy and the provisions of the bankrupt act practically nullified. It is therefore very clear that by the bankrupt act of 1898 the general jurisdiction of the state courts in independent actions between the trustee and adverse claimants was in no manner abridged, and this doctrine is recognized in subd. b, sec. 23, Bankr. Act. 1898, 30 Stats. at Large, 552 [U. S. Comp. St. 1901, p. 3431], which provides that "suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant." This subdivision was amended in 1903 (Act Feb. 5, 1903, ch. 487, sec. 8, 32 Stats. at Large, 798 [U. S. Comp. St. Supp. 1903, p. 413]) by adding: "except suits for the recovery of property under section sixty, subdivision b, and section sixtyseven, subdivision e." So when this suit was brought it could not be maintained in the federal court without the consent of the defendant. Bardes v. Hawarden Bank, supra; Perkins v. McCauley, 98 Fed. 286. The bankrupt act of 1898 neither expressly nor by necessary implication having excluded the state court or given exclusive jurisdiction to the federal courts in suits by trustees to recover property transferred in fraud of the bankrupt act, the ordinary jurisdiction of the state court under the constitution and laws continued to exist. French v. R. P. Smith & Sons Co. 81 Minn. 341, 84 N. W. Jackman v. Eau Claire Nat. Bank, 125 Wis. 465. 44; Chism v. Citizens' Bank, 77 Miss. 599, 27 South. 637; Bardes v. Hawarden Bank, supra. And this doctrine is in harmony with the general theory in favor of concurrent jurisdiction under the constitution and laws. No, reason exists why a contestant with a bankrupt in such case should lose any of his rights by the bankruptcy of his adversary, and for obvious reasons it might be preferable for him to litigate in the state courts. Hence the provision of subd. b, sec. 23, Bankr. Act 1898, to the effect that suits by a trustee shall only be brought in the courts where the bankrupt might have brought and prosecuted them if proceedings in bankruptcy had not been instituted, unless by the consent of the proposed defendant. Claflin v. Houseman, 93 U. S. 130. It is well settled that, unless exclusive jurisdiction be given to the federal court, state courts have concurrent jurisdiction, subject to review by the supreme court of the United States, except in cases where by the constitution itself the power is given exclusively to the federal courts or prohibited to the state courts. Martin v. Hunter's Lessee, 1 Wheat. 304; Houston v. Moore, 5 Wheat. 1, 26; Claflin v. Houseman, supra. It is clear, therefore, as a general proposition, that at the time this action was commenced state courts had jurisdiction of such controversies. But it is claimed on the part of the defendant that the action cannot be maintained without overruling Brigham v. Claflin, 31 Wis. 607, and Bromley v. Goodrich, 40 Wis 131. It will be observed, however, that these cases were decided under the bankrupt act of 1867, and it was held under this act that the federal and state courts had concurrent jurisdiction, and hence the bankruptcy statute was not nullified. by refusal on the part of the state courts to take jurisdiction. Besides, these Wisconsin decisions were put upon the ground that, the action being penal, and arising under the federal statute providing a federal forum for redress, state courts should not interfere to enforce a penalty under a federal statute. And further, that conflicts might arise between the state VOL. 125-31 Jackman v. Eau Claire Nat. Bank, 125 Wis. 465. and federal courts, and, this being so, and the statute a penal one, and the United States courts having jurisdiction, grave consequences were anticipated in the assumption of jurisdiction by the state courts. In Brigham v. Claflin, supra, at page 613, this court says: "In the first place, it must be obvious that the assertion of a state jurisdiction in such causes will greatly tend to protract and multiply suits in respect to the bankrupt's estate, and will inevitably be a most fruitful source of conflict and collision between the state and federal tribunals. The object and policy of the bankrupt law manifestly are to collect and distribute the property of the bankrupt among his creditors as promptly as practicable; and these ends can be much more readily accomplished by the United States courts-which have. plenary jurisdiction in these matters-than by tribunals acting by different modes, and deriving their powers from other sources." No such consequences could result from the bankrupt act of 1898. On the contrary, the contention of counsel for defendant would put the trustee in the anomalous position of being unable to administer his trust because no court was open to him. The bankrupt act of 1898 clearly contemplates that suits similar to the one before us may be brought in state courts, and cannot in the United States courts. This court has declined to follow the doctrine of Brigham v. Claflin, 31 Wis. 607, and has, in effect, held that actions like the instant case may be maintained in the state courts. Binder v. McDonald, 106 Wis. 332, 82 N. W. 156; Mueller v. Bruss, 112 Wis. 406, 88 N. W. 229. State courts therefore should take jurisdiction, and the action was properly brought. Claflin v. Houseman, 93 U. S. 130; Mueller v. Bruss, supra; Bardes v. Hawarden Bank, 178 U. S. 524, 20 Sup. Ct. 1000; Lyon v. Clark, 124 Mich. 100, 82 N. W. 1058, 83 N. W. 694; French v. R. P. Smith & Sons Co. 81 Minn. 341, 84 N. W. 44; Perkins v. McCauley, 98 Fed. 286; Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224; Whitman v. Oxford Jackman v. Eau Claire Nat. Bank, 125 Wis. 465. Nat. Bank, 176 U. S. 559, 567, 20 Sup. Ct. 477; Chism v. Citizens' Bank, 77 Miss. 599, 27 South. 637. It is further claimed by counsel for defendant that the property for the value of which this suit was brought had never been sold or received by the defendant, and therefore the action cannot be maintained; that the defendant received notes, not property. It was established on the trial, without any room for reasonable controversy, that what the bank got was its mortgage interest, obtained in fraud of the bankrupt act, and its interest by reason of certain lien claims, and a small amount in addition, as we have before indicated. The notes were but mere instruments by means of which its interest in the property was transferred to its possession in the form of money. To all intents and purposes it received the logs and lumber to the extent of its interest therein as effectually as any chattel mortgagee obtains his interest in the subject covered thereby when a purchaser thercof subject to the mortgage values the mortgage interest and delivers it to the mortgagee in money. The act of carving out an interest in the property and transferring it by means of the mortgage, and the enforcement thereof in fraud of the bankrupt act, was, to all intents and purposes, a wrongful conversion of the property to that extent. The complaint was in trover, which was proper under the circumstances. The difficulty at several points in this case is in the fact before mentioned that the mere instrument by means of which an interest in the property was transferred to defendant has been treated as the property defendant obtained. It is further claimed by defendant that there is no evidence sufficient to support the finding that defendant had reasonable cause to believe that Young intended by the sale to enable the bank to obtain a greater percentage of its debt than other creditors of the same class would be able to obtain, and we are earnestly asked by counsel to carefully consider the evidence upon this subject. Quite a lengthy argument is |