In re Brooks

• Court: U.S. District Court — Panama Canal Zone
• Writing for the Court: ATWELL
• Citation: In re Brooks, 27 F.2d 146 (C.Z. 1928)
• Decision Date: 25 June 1928
• Docket Number: No. 2612.,2612.
• Parties: In re BROOKS.

27 F.2d 146 (1928)

In re BROOKS.

No. 2612.

District Court, N. D. Texas, Dallas Division.

June 25, 1928.

Neyland & Neyland and H. L. Carpenter, all of Greenville, Tex., for petitioner.

McCormick, Bromberg, Leftwich & Carrington, of Dallas, Tex., and B. M. McMahon, of Greenville, Tex., for bankrupt.

ATWELL, District Judge.

For 20 years the bankrupt and his wife had resided on Washington street, in the city of Greenville. At the time of the wife's death, in January, 1927, they had a minor child and an adult married son, the first of whom lived with them. On December 24, 1927, he executed a deed conveying this home, together with the furniture therein, to his uncle, to whom he owed a large sum of money. On December 27, 1927, his uncle returned the deed to him, declining to accept it.

On December 26, he married again, and together with his new wife and minor child, took up his residence upon property belonging to her. On December 30 an involuntary petition in bankruptcy was filed against him, and on January 20, 1928, he was adjudged a bankrupt, and on January 30 he filed his schedules. In these schedules, of his former home, he said: "The residence on the north side of Washington street, in the city of Greenville, being the former residence of the bankrupt."

In another schedule, under the head of "Exempt Property," he claimed wearing apparel, $100; an automobile, and nothing more. On February 25 he sought and was given permission to "file amendments to his schedules." The application recited "an amendment to schedule B-5, showing additional property claimed to be exempted by state laws, its valuation, whether real or personal, its description and present use, and reference given to the statute of the state creating the exemption. Bankrupt would show that the matters shown by these amendments were omitted from the former schedules because he was unable at the time said schedules were filed to give a correct list and date in regard to all of his indebtedness and all property that belonged to his estate, and they were left out because he was unable to recall all of them at the time the schedules were prepared. That he had no regular set of books from which such information could be obtained."

The amended schedule itself is as follows:

"Property claimed to be exempted by state laws: Household and kitchen furniture, located in my residence on the north side of Washington street, in the city of Greenville, Texas; value $1,000. My residence, located on the north side of Washington street, in the city of Greenville, Texas, out of the John Gillespie survey; value $8,000.

"In my former schedule neither my residence nor the furniture were claimed as exempt. This residence was listed among my real estate, but by an error on the part of the parties preparing the schedules, as I had conveyed it, so I thought, to M. M. Brooks, but since he declined to accept the conveyance I am claiming the property as exempt under the laws of the state of Texas, and under article 3832, Revised Civil Statutes of the state of Texas. It is my intention to remove with my family to this property in the next few days. This property was occupied by me and my minor daughter until the time of my second marriage on the 26th of December, 1927. My second wife had a home of her own, and we have been living there since our marriage, but this property has been my homestead for about 20 years."

Both the original and the amended schedules were sworn to by the bankrupt. As said in White v. Stump, 266 U. S. 310, 45 S. Ct. 103, 69 L. Ed. 301: "The Bankruptcy Law does not directly grant or define any exemptions, but directs, in section 6 11 USCA § 24, that the bankrupt be allowed the exemptions `prescribed by the state laws in force at the time of the filing of the petition'; in other words, it makes the state laws existing when the petition is filed the measure of the right to exemptions. It further provides that a voluntary bankrupt shall claim the exemptions to which he is entitled in a schedule filed `with the petition,' and an involuntary bankrupt shall claim his in a schedule filed within 10 days after the adjudication, unless further time be granted. * * *"

1. A bankrupt may waive his claim to exemption, including claim of homestead, in some jurisdictions, and does waive such claim by scheduling the property as subject to his debts. In re Liby (D. C.) 218 F. 90; In re Gunzberger (D. C.) 268 F. 673; In re Haskin (D. C.) 109 F. 789; In re Von Kerm (D. C.) 135 F. 447. And when a bankrupt waives his claim in his schedules the title to the property vests in the trustee as of date of adjudication, and a subsequent claim of homestead would not divest this property. In re Sloan (D. C.) 135 F. 873; McWhorter v. Barnes (C. C. A.) 283 F. 1022.

In Texas the head of a family may abandon his homestead or waive his right thereto; abandonment being a nonjudicial action, while a waiver is the act of the owner in a suit or judicial proceeding. Zeno v. Adoue, 54 Tex. Civ. App. 36, 117 S. W. 1039; Ringle v. Waggoner (Tex. Civ. App.) 238 S. W. 236; Bantuelle v. Chapman (Tex. Civ. App.) 256 S. W. 936; Gilbert's Collier, Bankruptcy, 192 (d).

2. One may not lose his homestead in Texas by going away from it. There must be a total abandonment with an intention not to return. Armstrong v. Neville (Tex. Civ. App.) 117 S. W. 1010; Herman v. Smith (Tex. Civ. App.) 141 S. W. 1087; Thigpen v. Russell, 55 Tex. Civ. App. 211, 118 S. W. 1080; Robinson v. McGuire (Tex. Civ. App.) 203 S. W. 415; Ran v. City National Bank (Tex. Civ. App.) 272 S. W. 510; Staten v. Harris (Tex. Civ. App.) 239 S. W. 334; Wiener v. Zweib (Tex. Civ. App.) 128 S. W. 699; Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832.

In Woodward v. Sanger Brothers (C. C. A.) 246 F. 777, it was stated that, whenever land has had impressed upon it the homestead character, its abandonment as a homestead must be beyond doubt, before the homestead protection will be refused. There must be an absolute and unequivocal intention to abandon, and, in most cases, the inference of abandonment will...