In re Cohen
| Decision Date | 05 December 1939 |
| Docket Number | No. 9248.,9248. |
| Parties | In re COHEN et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
R. N. Grisham, of Eastland, Tex., and E. L. Klett, of Lubbock, Tex., for petitioners.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
This is a petition by Aaron Cohen and Oda Parish for writs of mandamus and prohibition directed to Honorable Alexander Akerman, U. S. District Judge for the Southern District of Florida, and Honorable T. Whitfield Davidson, U. S. District Judge for the Northern District of Texas. For the sake of brevity, the courts will be hereafter referred to respectively as the Florida and Texas court. From the allegations of the petition and annexed exhibits, which, for the purpose of this proceeding, we will assume correctly state the material facts, the following appears.
Pearl Chatterton was adjudicated bankrupt on her voluntary petition in the Florida court on June 4, 1938. The case was referred to the referee and on further proceedings, on August 3, 1938, Emory Akerman was duly appointed and qualified as trustee of her estate. She surrendered among her assets a tract of land in Yoakum County, Texas, within the territorial jurisdiction of the Texas court, described generally as the "Northeast One-quarter of Section 897, Block D. J. H. Gibson Survey," of which she claimed title and possession by virtue of a recorded warranty deed from M. W. Easum and wife, dated February 4, 1928. The property had been levied upon under process issued out of the 99th District Court of Lubbock County, Texas, to satisfy a judgment obtained against her by Glover Luenberger, and had been advertised by the sheriff for sale. On August 2, 1938, Luenberger filed his proof of claim, based on said judgment, in the bankruptcy proceedings. He surrendered his lien to the trustee and his claim was allowed in the sum of $4,000 with interest and costs.
The trustee posted notices upon the property that it was in the custody of the Florida court and filed a certified copy of notice showing his appointment, the adjudication and copy of his bond, in the office of the clerk in the county court of Yoakum County and it was recorded in the deed records of that county under date of September 3, 1938. On November 2, 1938, the trustee filed his petition to marshal liens, determine the interest of others in the land and to sell it free of liens. The referee considered the petition, determined the rights of parties then before him, and directed the trustee to lease the property for development and drilling. On January 3, 1939 a lease was made with the approval of the court.
More than ten months after the adjudication in bankruptcy, on April 25, 1939, without leave of the Florida court, petitioner Cohen filed suit in the Texas court claiming to be the owner of the minerals under the land. The other petitioner, Oda Parish, was made a party defendant and answered claiming fee simple title to the land. The trustee had notice of these proceedings and...
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