Where, as here, the order vacating the prior order was not made for the purpose of extending the time for appeal, and was made within the time an appeal could have been taken from the order vacated, the power of the District Court cannot be questioned and an appeal within thirty days of the final order is within time. West v. W.A. McLaughlin Co's. Trustee (C.C.A.) 162 F. 124, 126; In re Rubin (C.C.A.) 1 F.2d 157; cf. Bonner v. Potterf (C.C.A.) 47 F.2d 852, 855; Mutual Bldg. Loan Ass'n v. King (C.C.A.9) 83 F.2d 798; In re L.H. Seifer Sons (C.C.A.) 78 F.2d 196. We note here that counsel for the trustee in bankruptcy was present at the time the motion was made by appellants to vacate the order of the District Court of December 13, 1934.

We are satisfied that, under this particular state of facts, the reference did not vitiate or otherwise affect the validity of the ultimate order of the court itself whereby this petition of the debtor was dismissed. In re Rubin (C.C.A.) 1 F.2d 157. Under section 74 the functions and duties of a referee are not substantially otherwise than in bankruptcy matters generally.

PAGE, Circuit Judge. Appellant's estate is in bankruptcy, and these appeals are to reverse orders allowing the claim of each appellee. Some questions in this bankruptcy proceeding were before this court in Re Rubin, 1 F.2d 157, and that opinion throws some light on Rubin's methods of doing business. No. 3881. Sam Midlinsky Claim. — This claim was filed on November 20, 1924, on a judgment in a state court rendered January 31, 1917. Bankrupt's objections thereto were filed April 2, 1925, and set out: (a) That the only basis for the judgment was a note given for the sole purpose of enabling Midlinsky to make a redemption in foreclosure of a certain piece of property for Rubin; (b) that the matters and things set forth in a bill of complaint in a suit in the state court between bankrupt and Midlinsky and others are true; (c) the redemption in the foreclosure case was for the benefit of bankrupt, and if the rents, etc., collected after the redemption were accounted for they would more than pay the judgment.

This conclusion has not been reached without a consideration of the conflicting opinions of the courts cited by counsel for the respective parties upon this and related issues. Counsel for the petitioner have cited these opinions, which either sustain or strongly indicate that the courts which rendered them would sustain, if the question were presented to them, the conclusion we have reached: In re Langford, Felts Myers (D.C.) 225 F. 311, 314, 315; In re Troth (D.C.) 104 F. 291, 292; In re Sweeney, 168 F. 612, 614, 94 C.C.A. 90; In re Wayne Goodwine (C.C.A.) 298 F. 81, 82; In re Wilcox (D.C.) 156 F. 685, 686; In re Rubin (C.C.A.) 1 F.2d 157, 159; In re Nankin, 246 F. 811, 813, 159 C.C.A. 113. Counsel for the respondent have cited the following authorities, which they maintain indicate that the courts that rendered the opinions therein held or would have held to the contrary, if the question before us had been presented to them: International Harvester Co. v. Carlson, 217 F. 736, 738, 133 C.C.A. 430; United States v. Ward, 257 F. 372, 168 C.C.A. 412; Fellows v. Freudenthal, 102 F. 731, 734, 735, 42 C.C.A. 607; In re Gillardon (D.C.) 187 F. 289; In re Walsh, 256 F. 653, 168 C.C.A. 47. The first two cases last cited were decided by this court, and the District Judge below was of the opinion that they were decisive of the question in this case in support of the conclusion which he reached.

That the payment to Raphael was made with borrowed money from the Bank does not make the transaction a valid one. Cf. In re Rubin, 7 Cir., 1 F.2d 157. The form of the transaction by which a transfer is effected is not of governing importance if the essential elements of a fraudulent conveyance are present. 8 C.J.S., Bankruptcy, § 232, p. 822. If the sale of the interest of Raphael to Francis, while their partnership was insolvent, was a fraudulent transfer of partnership property under the law (as we hold it was), then the loan made by the Bank and the chattel mortgage given as security therefor to effect such transfer were integral parts of that transaction.

Several adjudications are drawn to my attention wherein it was ruled that reference to a master on application for discharge is unauthorized by section 14b of the act (11 USCA § 14(b) and General Order 12 (11 USCA § 53), but in none of the cited cases has it been held to be a ground for reversal of the findings, where the evidence was reviewed by the judge. See In re Rubin (C.C.A.) 1 F.2d 157. And see In re Walder (D.C.) 152 F. 489. And in International Harvester Co. v. Carlson (C.C.A.) 217 F. 736, it was ruled that, where the application for discharge was referred to a referee to ascertain and report the facts, the report is deemed advisory only. So in either case, whether the reference is to the referee in bankruptcy or to a special master in chancery, it is the duty of the District Court to pass upon the issues whenever exceptions to a report are filed. This has been done in the instant case, and my conclusions on facts and law conform to those embodied in the report.