131 F.2d 318 (8th Cir. 1942), 12232, Equitable Life Assur. Soc. of United States v. Carmody

Docket Nº:12232.
Citation:131 F.2d 318
Party Name:EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. CARMODY.
Case Date:November 03, 1942
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 318

131 F.2d 318 (8th Cir. 1942)

EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES

v.

CARMODY.

No. 12232.

United States Court of Appeals, Eighth Circuit.

November 3, 1942

Page 319

[Copyrighted Material Omitted]

Page 320

A. H. Sargent, of Cedar Rapids, Iowa (C. G. Lee, of Ames, Iowa, on the brief), for appellant.

Ed. J. Kelley, of Ames, Iowa, for appellee.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

In a proceeding under subsection s of section 75 of the Bankruptcy Act, 11 U.S.C.A. § 203, sub. s, appraisers appointed by the Conciliation Commissioner, in May 1940, appraised the value of the debtor's farm, consisting of 220 acres in Story County, Iowa, at $24, 420, or $110 an acre. Thirteen months later, the debtor offered to pay into court the amount of the appraised value, under subsection s(3), and applied to the Conciliation Commissioner for an order turning over possession and title, free and clear of incumbrances, on this basis. The secured creditor, who had a mortgage lien of over $33, 000 on the property, filed a request that the Conciliation Commissioner hold a hearing and fix the value in accordance with the evidence submitted. A hearing of several days was thereupon held and, from the evidence, the Conciliation Commissioner found the value of the farm to be $24, 420, or $110 an acre, as had the appraisers, and entered an order that the debtor was entitled to redeem the property for this amount. On a review by the District Court, that court approved and confirmed the order of the Conciliation Commissioner, and the secured creditor has appealed.

Appellant's principal contention is that the finding of the Conciliation Commissioner and the District Court as to the value of the farm is clearly erroneous, because it apparently rests upon the testimony of the witnesses for the debtor, who, it is argued, were 'absolutely disqualified as witnesses' and whose evidence 'was rendered absolutely incompetent by their own admissions.'

The record shows that five real estate salesmen had testified for appellant that in their opinion the land was worth from $135 to $140 an acre, and that five neighborhood farmers on behalf of the debtor had estimated its market value at $100 to $110 an acre. On cross-examination, one of the debtor's witnesses had answered that market value was determined by what the land would produce; another that it depended upon 'what the land will produce and the condition of the soil'; the third that it was 'all the land was worth'; the fourth that it was 'what the land will sell for if it were put up and sold at public auction' or 'what it sold for if sold at private sale'; and the fifth that 'it is the price that is put on a commodity where neither side has to sell or buy'. Some of these answers were inexact; and only one perhaps was a reasonably accurate legal definition

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of market value. But, in the situation presented by the record, we do not believe that it can be said that all of the debtor's witnesses were 'absolutely disqualified' to testify, and that their evidence was rendered 'absolutely incompetent'. and that there was nothing in the record upon which the finding of the District Court and the Conciliation Commissioner could soundly rest.

A full reading of the testimony of the debtor's witnesses shows that they had taken into account and described on the witness stand such various elements entering into...

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