In re Hill

• Decision Date: 17 June 1899
• Citation: 96 F. 185
• Parties: In re HILL et al.
• Court: U.S. District Court — Northern District of Georgia

96 F. 185

In re HILL et al.

United States District Court, N.D. Georgia.

June 17, 1899

Spencer R. Atkinson and O. E. & M. C. Horton, for creditors.

T. C Battle, for bankrupt.

NEWMAN District Judge.

In this case I have been asked to review and reconsider a ruling made in the case of In re Camp, 91 F. 745, to the effect that the exemption allowed a bankrupt by the laws of the state would not be administered in the bankrupt court in favor of creditors holding notes containing waivers of homestead exemptions. The argument made by counsel at this hearing is based mainly on the language of the waiver contained in the notes held by creditors of Hill & Wait. The waiver attached to these notes, which is the same as that in general use in Georgia, is a waiver of all right of homestead and exemptions against the note, or any renewal thereof. Particular emphasis is given by counsel to the word 'right.' The contention is that the debtor not only concedes the right of the creditor to have his debt out of any property as to which he may be entitled to homestead or exemption, but that he waives and renounces the right to have the homestead or exemption set apart. Then, the further argument is that, the debtor, by the agreement contained in his note, having waived the right itself to have the homestead or exemption set apart, the bankrupt court will not allow an exemption as to which the right has been waived, so long as the creditor having such a waiver note objects, or until his note is paid. The argument in this respect is based very largely on certain decisions of the supreme court of the state in which it is held that the homestead is a right in property, and to waive it is substantially to convey it away and, having so conveyed it to the creditor, he cannot set up title to it as an exemption until the debt is paid. The cases cited are Flanders v. Wells, 61 Ga. 195; Tribble v. Anderson 63 Ga. 31; Cleghorn v. Greeson, 77 Ga. 343; and Broach v. Powell, 79 Ga. 79, 3 S.E 763. The decisions relied upon were mainly in cases where it was sought to avoid the effect of the waiver on the ground that the debt was infected with usury, and the effect of all the decisions is that, relatively to the determination of this question, the waiver of homestead and exemption in the note would be regarded as a conveyance of the homestead right.

All this is no answer to the fact that exempt property is never in the court of bankruptcy. The act provides that the title to all property, except such as is exempt, vests in the trustee in...