In re McBryde

• Decision Date: 04 December 1899
• Citation: 99 F. 686
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: In re McBRYDE.

99 F. 686

In re McBRYDE.

United States District Court, E.D. North Carolina.

December 4, 1899

The referee reported as follows:

The undersigned, referee in bankruptcy, respectfully reports: At Fayetteville, in said district, at a creditors' meeting called to consider bankrupt's application for discharge (present, E. D. McBryde, bankrupt, and his attorney B. F McLean, Esq., and the Navassa Guano Company, a judgment creditor, and John Leach, creditors whose claims have been filed and allowed, by their attorney, John H. Cook, Esq.) the following proceedings were bad: John Leach, by his attorney, offered to file proof of claim for fifty five and 41/100 dollars; the same being based upon a judgment rendered in a suit instituted in state court, which was begun after the adjudication that McBryde is a bankrupt. Objected to by the bankrupt. Objection sustained, and creditor, Leach excepted. Upon an intimation of the referee, Leach then struck out all that part of his proof of claim which referred to the said judgment, treating the said judgment as a nullity, and again offered to file his proof of claim. The bankrupt again objected, for the reason that the same was barred by the three-years statute of limitations. The referee finds the following agreed facts: The said proof of claim is based upon a promissory note which fell due less than three years prior to the institution of the bankruptcy proceedings and less than three years before the adjudication in bankruptcy, but more than three years prior to this date (November 15, 1899), when it is filed. The referee overruled the objection and filed the claim, and the bankrupt excepted. John H. Cook, Esq., attorney as aforesaid, filed a petition praying the reallotment of bankrupt's homestead accompanied by the affidavits of three disinterested freeholders in Robeson county, where the said homestead lies, setting forth that in their opinion the homestead (which was laid off about 15 years ago) has increased in value more than 50% since last allotment. The referee held a reallotment should be granted upon the strick compliance, as far as may be, with the requirements of chapter 149, Laws N.C. 1893, entitled 'An act to provide for the reallotment of homesteads;' that this act, and all other laws of North Carolina relating to the homesteads, by section 6 of the bankruptcy act are made a part of the national bankruptcy law. To this ruling the bankrupt excepted. The said John H. Cook, Esq., attorney as aforesaid, gave notice of his objection to the granting of the discharge to D. E. McBryde, bankrupt, until the question of the reallotment of the homestead can be passed upon by the judge. The referee recommends that the discharge be held up until the homestead question be decided; for, if the discharge be granted, the bankruptcy court would have no jurisdiction to reallot the homestead if it is determined that such a course is legal. And Cook, attorney, objects to the granting of the discharge for the reason that the bankrupt has knowingly scheduled for real estate at far below its real value. As it appears that the bankrupt adopted the valuation placed upon his real estate by the appraisers who laid off his homestead in the state court about 15 years ago, the referee is of the opinion that this does not constitute a valid objection to the granting of the discharge. It is not contended that bankrupt failed to list any of his property. It is therefore recommended by the referee that the discharge be granted as soon as the homestead can be reallotted, if it is decided it should be reallotted. Petitions setting forth matters which the judge is asked to review are herewith attached. Petition by B. F. McLean, Esq., attorney for the bankrupt, is marked Exhibit A,' and the petition of John H. Cook, Esq., attorney for creditors, is attached, and marked 'Exhibit B.' The report of trustee as to property set apart as exemptions is also attached, and marked 'Exhibit C.' Proof of conformity and record in the...