In re Whitener

• Decision Date: 20 November 1900
• Docket Number: 921.
• Citation: 105 F. 180
• Parties: In re WHITENER. v. RAMSEUR et al. RODGERS
• Court: U.S. Court of Appeals — Fifth Circuit

105 F. 180

In re WHITENER.

RODGERS v. RAMSEUR et al.

No. 921.

United States Court of Appeals, Fifth Circuit.

November 20, 1900

The following general statement of the case is found in the transcript, apparently agreed to by all the counsel representing the various parties in interest:

On the 24th day of April, A.D. 1899, J. C. Whitener, bankrupt, filed his petition in bankruptcy. The schedule made by Whitener disclosed no assets. On the 28th day of April, A.D. 1899, he was duly adjudicated a bankrupt. On the 15th day of May, A.D 1899, the first meeting of the creditors was held at Texarkana, Tex., in pursuance of notice issued and mailed by the referee to all the creditors of said bankrupt, and published in the Gate City News, the paper designated for publication of notices in bankruptcy, at which meeting creditors of the said bankrupt proved up and filed their claims, examined the bankrupt, and appointed Rollin W Rodgers, of Texarkana, Tex., as trustee in bankruptcy of said estate, and the said Rodgers was duly qualified as said trustee. On the 26th day of May, A.D. 1899, the creditors of said bankrupt filed their contest of Schedule B filed by said bankrupt, and a motion for a subpoena for witnesses and documents, and to commit for contempt. On the 6th day of June, A.D. 1899, this cause came on for hearing, in pursuance of notice, said hearing being on petition of contesting creditors contesting the schedule filed by the bankrupt herein. A motion to commit for contempt, and the application of said creditors for an order of court commanding the said J. C. Whitener, the bankrupt, to deliver over to the said Rollin W. Rodgers, trustee, all of certain real and personal property alleged in creditors' petition to be in the possession of the said J. C. Whitener, and the property of the said J. C. Whitener, at and before the time he filed his petition in bankruptcy. In his answer to the creditors' petition, the said J. C. Whitener alleged that the property in controversy was owned by one P. S. Ramseur, and that he (the said Whitener) was holding the same as agent of the said Ramseur. The property in controversy is described as follows to wit: Lots No. 4, 5, and 6, in block No. 12; lot No. 2, in block No. 25; also one-seventh of lot No. 7, in block No. 12 being 25 feet off of the east end of the said lot next to the alley,-- all situated in the city of Texarkana, Bowie county, Tex., together with all the appurtenances and improvements thereon; also all the livery stock belonging to the stable now conducted by the said R. W. Rodgers as trustee herein, including all horses and other animals, carriages, buggies, and other vehicles, and all harness, moneys, and personal properties of every kind pertaining to the said livery-stable business, including all books and book accounts connected therewith; also the undertaker's establishment now in the possession of said Rodgers, as trustee herein, situated in Texarkana, Tex., including all coffins, hearses, teams, and property of every description, including money, books, and book accounts appertaining thereto,-- all of which said property at the time of said hearing was in possession of the said Whitener. After hearing the testimony of witnesses, it was ordered that a further hearing be postponed to make additional parties. On the 24th day of June, A.D. 1899, the said contesting creditors filed their motion to make P. S. Ramseur, of Lamar county, and the People's Building, Loan & Savings Association of Syracuse, N.Y., parties to this suit, and the 6th day of July, 1899, was set for the day for hearing said contest, said hearing to be had at Texarkana, Tex. On the 6th day of July, A.D. 1899, the cause came on further to be heard, and it appearing to the court that the said P. S. Ramseur and the said People's Building, Loan & Association had not been served with process making them parties to this suit, and upon hearing further testimony and argument of counsel, it was ordered by the court that the said J. C. Whitener, bankrupt, should immediately deliver all of the said property to the said Rollin W. Rodgers, trustee. In compliance with said order of the referee, the said J. C. Whitener delivered to the said Rodgers all of the property above described. And it was further ordered that a further hearing of this cause be postponed to complete service on the said P. S. Ramseur and the said People's Building, Loan & Savings Association. On the 15th day of August, A.D. 1899, the said association filed their answer in said cause, and their motion to have R. L. Dalby, liquidating agent of the Interstate National Bank of Texarkana, made a party to this suit. On the 15th day of September, A.D. 1899, P. S. Ramseur filed his answer in this cause, setting up claim of title and right of possession to all of the said described property, and praying for an order of court that the said Rollin W. Rodgers, trustee, deliver over into the possession of the said P. S. Ramseur all of the said property; also came the said R. L. Dalby, liquidating agent of the said Interstate National Bank of Texarkana, and filed his answer, setting up claim of title and right of possession to all of the real estate above described. On the 28th day of September this cause came on for hearing before the referee, Texarkana, Tex., and judgment of the court was rendered in favor of the said Rollin W. Rodgers, as against the said P. S. Ramseur, and, on application of the said P. S. Ramseur and the said Rollin W. Rodgers for questions to be certified to the judge, the said questions were certified. Upon a hearing of the said certified questions by the judge, the case was referred back to the referee, to be administered in accordance with the provisions of the acts of congress relating to bankruptcy, dismissing as to said Ramseur. On the 7th day of October, A.D. 1899, a writ of sequestration was issued out of the district court of Bowie county, Tex., at the suit of the said P. S. Ramseur, as plaintiff, against the said R. W. Rodgers, trustee, and the sureties on his bond as trustee, and A. F. Shapleigh Hardware Company, one of the creditors of said bankrupt. By virtue of said writ of sequestration, T. S. Edwards, sheriff of Bowie county, Tex., took possession and control of all the said property out of the possession and control of said Rollin W. Rodgers, trustee. On the 8th day of October, A.D. 1899, the said Rollin W. Rodgers, trustee, filed in the district court of the United States for the Eastern district of Texas his application for an order of court enjoining and restraining the said T. S. Edwards and said Ramseur, their agents, attorneys, and deputies, from further interference with the said trustee's possession of the said property, which said prayer was granted by the Honorable D. E. Bryant, judge of said court, and in compliance with said order the said property was delivered back into the possession of the said trustee. On the 16th day of October, 1899, the said P. S. Ramseur filed his petition of intervention in this cause, making himself a voluntary party to this suit. On the 17th day of November this cause came on finally to be heard before the referee at Texarkana, Tex., and judgment was rendered in favor of Rollin W. Rodgers, trustee, against P. S. Ramseur, intervener, and the Interstate National Bank of Texarkana, and in favor of the People's Building, Loan & Savings Association of Syracuse, N.Y., for the sum of $5,459.01, together with all costs of suit, and an order foreclosing their deed of trust lien on the real property as heretofore described, and an order directing said R. W. Rodgers to sell the said real property, and appropriate the proceeds of said sale to the payment of said lien. On the 22d day of December, A.D. 1899, Rollin W. Rodgers, trustee, filed his exceptions to the allowance to the claim of the People's Building, Loan & Savings Association, and his application to certify questions to the judge. On the 28th day of December, A.D. 1899, P. S. Ramseur, intervener, filed his application to have questions certified to the judge.

On the intervention of Ramseur, the referee found and certified the following as facts to the district court: 'On the 26th day of December, 1893, J. C. Whitener owned the property in controversy, but on the last-mentioned date assigned the same by deed of trust to S. R. Andrews, assignee. J. C. Whitener the bankrupt, on December 26, 1893, made an assignment under the general assignment laws of Texas, conveying all of said property to one S. B. Andrews, as assignee. S. B. Andrews qualified under the state law as assignee, and took possession of the property in controversy. On the 26th day of December, A.D. 1893, J. C. Whitener, the bankrupt, made a deed of assignment the property in controversy was transferred to S. B. Andrews. Before the assignment was made, S. B. Andrews was a resident of the state of Arkansas, and was cashier of the First National Bank, and changed his residence to Texas two or three days before the deed of assignment was made, at the request of the said J. C. Whitener, that he, the said Andrews, might qualify as assignee. Before the said assignment was made there was an understanding and agreement between the said J. C. Whitener and S. B. Andrews to the effect that Whitener would make Andrews assignee, and that Andrews would hold the property as assignee, until arrangements could be made by Whitener by which he (Whitener) could get possession and control of the said property. This agreement was carried out between Whitener and Andrews, P. S. Ramseur being the party or person agreed upon to become the purchaser for Whitener. Ramseur is the half-brother of Whitener. On the 12th day of February, Andrews transferred, by bill of sale, the undertaker's business and all the...