Cooney v. Collins

• Citation: 176 F. 189
• Decision Date: 21 February 1910
• Docket Number: 1,726.
• Parties: COONEY v. COLLINS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

176 F. 189

COONEY v. COLLINS et al.

No. 1,726.

United States Court of Appeals, Ninth Circuit.

February 21, 1910

Louis P. Donovan, for petitioner.

Robert McBride, for respondents.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This is a petition for revision, under section 24b of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 553 (U.S. Comp. St. 1901, p. 3432)), of the proceedings of the United States District Court for the District of Montana. The question presented is whether the bankruptcy court had power, by summary proceedings, to order the petitioner to surrender and turn over certain real and personal property, standing in his own name, to the trustee of the bankrupt.

The amended petition of the trustee for the order alleged, in effect, that certain real estate therein specifically described, situated in the state of Montana, stood upon the records of the several counties of the state in which the various pieces of property were respectively situate in the name of John W. Cooney, the petitioner here, and also alleged that certain personal property, specifically described in the petition of the trustee, also stood in the name of John W Cooney, but averred, upon information and belief, that all of the property so mentioned and described was purchased by the bankrupt, Frank Henry Cooney, with his own money, and that no part of the consideration therefor was paid by the said John W. Cooney, and that the said Frank Henry Cooney has at all times been in possession of all of the property, having absolute control and management thereof, all that the taking of the title to the described property in the name of the said John W. Cooney 'was and is colorable only and for the purpose of evading the creditors of the said Frank Henry Cooney.'

The answer of John W. Cooney to the trustee's amended petition put in issue the averments in respect to fraud and the interest of Frank Henry Cooney, and alleged, among other things, that the real property described in the trustee's petition as lot 5 in block 2, West Excelsior addition to the city of Butte, 'does stand in the name of this defendant and respondent, and has stood in his name for approximately four years, and that this defendant and respondent is the owner thereof by virtue of a deed, and that he built a house on said property himself, and that the said bankrupt, Frank H. Cooney, has not any interest in or possession of the said property, that the said property was not taken in the name of this defendant and respondent for the purpose of evading the creditors of the said Frank H. Cooney, but alleges that the said property was purchased by John W. Cooney, this defendant and respondent, and the whole of said consideration therefor was paid by said John W. Cooney with his own money, and that he now has, and at all times herein mentioned has had possession of said property- '; that certain other of the real property described by the trustee 'has been conveyed to one P. Vadney by deed executed by this defendant and respondent to the said P Vadney approximately ten months ago; that there is a contract between this defendant and said Vadney, whereby said Vadney shall reconvey said property to this defendant and respondent on the payment of $1,000 and interest by this defendant and respondent, John W. Cooney, to the said Vadney, and that the said Frank H. Cooney, the bankrupt, has not at this time and never had any interest in or possession of the said property but alleges that the said property was purchased by John W. Cooney, this defendant and respondent, and the whole of the consideration therefor was paid by said John W. Cooney with his own money, and that he now has, and at all times herein mentioned has had, possession of said property'; that in respect to certain of the other specifically described real property mentioned in the trustee's petition the said John W. Cooney has an undivided one-sixth interest, and has had the said undivided one-sixth interest therein for approximately eighteen (18) months, 'and has been the owner thereof by virtue of a deed executed and delivered by . . . to this defendant and respondent, and that the said Frank H. Cooney has no right, title, or interest therein, and never did have any right, title, interest, or possession therein, but alleges that the said property was purchased by John W. Cooney, this defendant and respondent, and the whole of the consideration therefor was paid by said John W. Cooney with his own money, and that he now has, and at all times herein mentioned has had, possession of said property'; that of another piece of the real property described in the trustee's petition the defendant John W. Cooney has been the owner for two years, by virtue of a conveyance thereof to him, the whole of the consideration for which was paid by him with his own money, and the possession of which he has ever since had, and in which property the bankrupt, Frank H. Cooney, never had any right, title, or interest, nor any possession thereof; that that portion of the real estate described in the trustee's petition which had been conveyed by the defendant John W. Cooney to P. Vadney was granted to him, John W. Cooney, 'by deed executed by Peter R. Dolman September 2, 1904, and filed for record September 30, 1904, and that said property was purchased by John W. Cooney, defendant and respondent, and the whole of the consideration therefor was paid by said John W. Cooney with his own money, and that he now has, and at all times mentioned herein has...