In re Buelow

Decision Date24 November 1899
PartiesIn re BUELOW et ux.
CourtUnited States District Court, District of Washington

H. W Lueders, for bankrupts.

S. A Crandall, for creditors.

HANFORD District Judge.

This is a case of voluntary bankruptcy, in which the petitioners have filed exceptions to the decision of the referee disallowing in part their claim to exempt property. It is quite difficult to ascertain from the record the real matter in dispute. I will pass upon the questions discussed orally and in the briefs submitted.

The bankrupts claim as a homestead a tract of land situated in the country, which has not been actually occupied as a home by the family during the several years of their residence in the city of Tacoma, while the husband has been carrying on business as a merchant, and which land was not occupied as a home by the bankrupts at the time of asserting their claim to it as an exempt homestead. The bankrupts also claim the benefit of an act of the legislature of this state relating to exemptions of personal property, approved March 11, 1897 which provides as follows:

'There shall be exempt from execution and attachment to every householder in the state of Washington personal property to the amount and value of one thousand dollars ($1,000) in addition to the property exempt under section 486 of volume 2 of Hill's Statutes and Codes of the State of Washington: Provided, that no property shall be exempt from execution for clerks', laborers', or mechanics' wages, earned within this state, nor shall any property be exempt from execution issued upon a judgment against an attorney on account of any liability incurred by such attorney to his client on account of any moneys, or other property coming into his hands from or belonging to his client. ' Laws 1897, p. 93; Ballinger's Ann. Codes & St. Sec. 5248a.

The laws of this state define a homestead to be protected against executions and forced sales for debt, as follows:

'The homestead consists of the dwelling house, in which the claimant resides, and the land on which the same is situated. * * * ' Ballinger's Ann. Codes & St. Sec. 5214.

The referee denied the right of the bankrupts to claim as a homestead land not occupied as a residence at the time, and in this he appears to have been guided by the plain provisions of the statute. Against his decision the only argument offered is that the bankrupts acquired title to the land under the provisions of the United States homestead law, and that they have never intended to abandon their residence upon the land, but it is conceded that for their own convenience they have actually lived elsewhere for several years. In support of this contention, counsel cites the decision of the supreme court of this state in the case of Wiss v. Stewart, 16 Wash. 376, 47 P. 736. In this case the supreme court upheld the right of a judgment debtor, who was the head of a family, to select and claim as a homestead property which was in fact improved as a residence, and which had been continuously occupied by the family as their homestead for three years prior to the trial of the cause, and which was so occupied at that time. Arguendo, the case supports the referee's decision, and does not in the remotest degree aid the bankrupts in their contention that property not in fact occupied as a family residence at the time of making claim to it can be set apart as an exempt homestead.

The referee allowed to the bankrupts, as exempt, all of the personal property which he considered could be lawfully claimed under the provisions of section 486, Hill's St. & Codes, but denied their right to an additional exemption of $1,000, as provided in the act of 1897, above quoted, for the reason that said act is unconstitutional and void. The reasons for the referee's decision on this point are set forth by him in an opinion as follows:

'The constitution of the state of Washington (article 2, Sec. 37) says, 'No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.' Section 486, Hill's St. & Codes, specifies, under fourteen subdivisions, the property that shall be
...

To continue reading

Request your trial
28 cases
  • State v. McCollum, 28809.
    • United States
    • Washington Supreme Court
    • September 27, 1943
    ... ... new exemption of a different kind. The decision in Copland ... v. Pirie was controlled [17 Wn.2d 128] largely by the ... decision of the United States district court for this ... district in Re Buelow 98 F. 86, construing the ... same statute. That court proceeded upon the theory that ... 'the new act is not complete, but refers to ... [141 P.2d 620] ... a prior statute, which is changed, but not repealed, by the ... new act, so that the full declaration of ... ...
  • Stingily v. City of Jackson
    • United States
    • Mississippi Supreme Court
    • June 8, 1925
  • Southern Pac. Co. v. Bartine
    • United States
    • U.S. District Court — District of Nevada
    • March 3, 1909
    ... ... Constr. Sec. 239; In re Dietrick, 32 Wash. 471, 476, ... 478, 73 P. 506; Northern Counties Investment Trust v ... Sears, 30 Or. 388, 41 P. 931, 35 L.R.A. 188, 194; ... State v. Rogers, 107 Ala. 444, 19 So. 909, 32 L.R.A ... 520, 522; Ex parte Pollard, 40 Ala. 98; In re Buelow ... (D.C.) 98 F. 86, 89; City of St. Petersburg v ... English, 54 Fla. 585, 45 So. 483, 486; St. Louis, ... I.M. & S. Ry. Co. v. Paul, 64 Ark. 83, 40 S.W. 705, 37 ... L.R.A. 504, 508, 62 Am.St.Rep. 154; Erford v. City of ... Peoria, 229 Ill. 546, 82 N.E. 374, 375; People v ... ...
  • State v. McCollum, 28809.
    • United States
    • Washington Supreme Court
    • September 27, 1943
    ...in Copland v. Pirie was controlled [17 Wn.2d 128] largely by the decision of the United States district court for this district in Re Buelow 98 F. 86, construing same statute. That court proceeded upon the theory that 'the new act is not complete, but refers to [141 P.2d 620] a prior statut......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT