Equitable Life Assur. Soc. v. Deutschle
| Decision Date | 08 December 1942 |
| Docket Number | No. 12330.,12330. |
| Citation | 132 F.2d 525 |
| Parties | EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. DEUTSCHLE. |
| Court | U.S. Court of Appeals — Eighth Circuit |
D. L. Ross, of Council Bluffs, Iowa (Oscar E. Johnson, of Council Bluffs, Iowa, on the brief), for appellant.
W. H. Hamilton, of Sigourney, Iowa (C. G. Updegraff, of Sigourney, Iowa, on the brief), for appellee.
Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.
This is an appeal by a secured creditor (mortgagee) from an order of the district court approving and confirming an order of the conciliation commissioner entered in a proceeding under § 75, sub. s of the Bankruptcy Act, 11 U.S.C.A. § 203, sub. s, which order fixed the market value of the debtor's farm of 159 acres at $11,295.00.
The appellant contends that the market value of the farm is greatly in excess of $11,295 and that its true value is in fact between $95 and $110 an acre. The order of the commissioner as approved by the court is assailed on the grounds: (1) that his decision is erroneous because it is against the weight of the evidence; (2) that he based his low valuation, in part at least, upon the fact that the debtor's improper farming had depleted the soil; and (3) that he erred in making a personal investigation and examination of the farm for the purpose of determining the value, and that his valuation was based, in part at least, upon such examination and investigation.
The first two of these contentions may conveniently be discussed together.
It is settled by numerous authorities that when the findings of a referee in bankruptcy (conciliation commissioner under § 75, sub. s) are supported by substantial evidence they are not "clearly erroneous" within the meaning of General Order 47, 11 U.S.C.A. following section 53, and that they will not be disturbed on appeal. This is especially true where, as in this case, the order appealed from has been approved and confirmed by the district court. See Equitable Life Assurance Society v. Carmody, 8 Cir., 131 F.2d 318.
Value is a fact to be determined upon a consideration and weighing of evidence of all the elements and factors affecting it. In this instance the testimony in respect of the elements of value involved covered a wide field, including the topography of the land, the character of the soil, the kind of crops produced upon it in the past, the kind and condition of the buildings and fences, and the estimated cost of necessary repairs and replacements. The findings disclose that the commissioner took the evidence on all these matters into consideration in determining the market value of the land. He pointed out that the soil had been depleted by the system of cultivation practiced by the owner and that the buildings are in dire need of repair. These facts, no matter why they exist, affect the market value of the land, and value alone was the fact to be determined from the evidence. The Act does not require the appraiser of market value to eliminate from his consideration the depleted condition of the soil nor the dilapidated condition of the buildings, even though these conditions are due to the unwise system of agriculture practiced by the debtor over a period of years and to her inability to keep the buildings in repair.
Counsel for appellant earnestly insist that the order should be reversed on the third ground urged and set out above. The facts upon which this assignment of error rest may be stated briefly. Pursuant to the provisions of § 203, sub. s(3) of the Act appellant, on December 1, 1941, requested the commissioner to hear evidence and fix the value of the real estate in accordance with the evidence submitted. A hearing was had on December 30, 1941. The evidence taken on the hearing showed that in the summer of 1941 the commissioner had been on the farm and examined it. After the hearing the...
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In re Myers
...Court in finding the action of the Referee to be clearly erroneous and an abuse of this exercise of power. Equitable Life Assurance Society v. Deutschle, 132 F.2d 525 (8th Cir. 1942); Moran Bros., Inc. v. Yinger, 323 F.2d 699 (10th Cir. 1963); Bankruptcy General Order 47; 2 Collier, Bankrup......
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