In re Stern

• Court: U.S. District Court — Northern District of Ohio
• Citation: In re Stern, 208 F. 488 (N.D. Ohio 1913)
• Decision Date: 08 February 1913
• Docket Number: 2,046.
• Parties: In re STERN.

208 F. 488

In re STERN.

No. 2,046.

United States District Court, N.D. Ohio, Western Division.

February 8, 1913

W. A Gossard, of Fremont, Ohio, for bankrupt.

Lewis B. Hall, of Toledo, Ohio, for trustee.

KILLITS District Judge.

This case is before the court on petition of the trustee for the review of the order of the referee allowing exemptions. The facts are as follows: In May, 1911, Stern, who is the head of a family and entitled to exemptions generally under the law of Ohio, bought a stock of merchandise for the agreed price of $1,900. Stern testified with reference to the purchase price as follows:

'I had no money when I bought him out, I gave him a note for $1,400 and borrowed $500 from my father-in-law and paid this. The full consideration price was $1,900.'

He conducted the business until August 20, 1912, when he filed a voluntary petition in bankruptcy. His creditors are his father-in-law for the $500 borrowed to make the first payment on the stock of goods, the holder of the note of $1,400 given in part payment of the stock of goods, a man of whom he borrowed $50 in cash (for what purpose the record does not suggest), and five wholesale houses, on open account, for merchandise purchased by him and placed in the store, in the amount of $531. He scheduled as his assets his household furniture, some bills receivable of minor consequence, and the stock of merchandise, and with his petition demanded his exemptions as a householder in lieu of a homestead. The merchandise was appraised in the sum of $1,218 and ordered sold. No selection was demanded by the bankrupt to meet his claim of homestead exemption, but the goods were permitted to be sold in bulk by the trustee. We judge from some of the comments of the referee that the sale was by the consent of the bankrupt, who expected to be allowed his exemptions out of the proceeds of sale. The stock brought the sum of $660 and the referee allowed the bankrupt, in lieu of homestead, upon his claimed exemption, that proportion of $500 which $660 bore to the appraised value of the merchandise, namely, $1,218, or the sum of $270.75. The trustee contends that under the circumstances the bankrupt is not entitled to exemption.

Section 11,738, General Code of Ohio, providing for exemption in lieu of homestead in a sum not exceeding $500, to be selected out of the personal property, contains, as its concluding sentence, this:

'No personal property shall be exempt from execution on a judgment rendered for the purchase price or any part thereof.'

By the amendment of 1910 to section 47 of the Bankruptcy Act it is provided:

'And such trustee, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon.'

Our view of this latter provision is that the trustee represents the several creditors, under this language, with varying powers and opportunities appropriate to the different status of the several creditors. He is,...