In re Cole

• Citation: 144 F. 392
• Decision Date: 16 February 1906
• Docket Number: 618.
• Parties: In re COLE. v. COLE. FIRST NAT. BANK OF BIDDEFORD et al.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

144 F. 392

In re COLE.

FIRST NAT. BANK OF BIDDEFORD et al. v. COLE.

No. 618.

United States Court of Appeals, First Circuit.

February 16, 1906

Elbridge R. Anderson (Charles W. Bartlett, on the brief), for petitioner.

Benjamin F. Cleaves (Albert S. Woodman, on the brief), for respondents.

Before COLT, PUTNAM, and LOWELL, Circuit Judges.

PUTNAM Circuit Judge.

This is a revisory petition under the statutes in bankruptcy. The petitioner, Annie M. Cole, was duly adjudged bankrupt on a petition filed in November, 1903. It is claimed that she received in September, 1903, $3,800, as the proceeds of the sale of her homestead in Saco. This was paid in bills, and it is maintained by her that it was paid into the hands of her husband, and that no part thereof ever came into her hands. The trustee in bankruptcy admits that a portion of it has been accounted for, leaving $2,425, which, on his application, the referee directed should be paid over by Mrs Cole to him. He made no alternative directions in the event she did not make the payment. The bankrupt duly appealed to the District Court, which made an order as follows:

'It is therefore ordered that the bankrupt turn over and deliver to the trustee, within 15 days, the said sum of $2,425; in default of which she stand committed to the marshal of this district, to be incarcerated until she obeys the order of this court, or is otherwise discharged by due process of law, or until the further order of this court.'

The question whether the money was in the possession or control of Mrs. Cole is, under the circumstances of this case, what the law designates a question of fact, over which we could of course, have no jurisdiction on this petition, which raises only questions of law, unless the finding of the District Court against her was so wholly unjustified on the proofs as would require us, on a writ of error, to set aside a verdict of a jury for want of any evidence whatever to sustain it, or for some other reason kindred thereto. The issue whether an order should run against a bankrupt, requiring the bankrupt to make payment to the trustee, is purely of a civil character; and therefore that part of the order before us which directed payment may be supported by a mere preponderance of evidence, presumptions, or inferences.

One claim made by Mrs. Cole is that the money in question had been used in paying the debts of her husband or herself, but on the record this is clearly not so supported that we can take jurisdiction thereof as a matter of law. Her other proposition as to the part of the order which directs payment is, as we have said, that the money received for the homestead went into the hands of her husband, and never had been in her hands. But, under the statutes of Maine, where she resided, and where these transactions occurred, as well as under the statutes of Massachusetts, to which state she is said to have removed, the price received for the real estate was absolutely her property, and legally subject to her control. Her husband was simply her representative, or agent....