In re Youngstrom

• Decision Date: 23 April 1907
• Docket Number: 45.
• Citation: 153 F. 98
• Parties: In re YOUNGSTROM.
• Court: U.S. Court of Appeals — Eighth Circuit

153 F. 98

In re YOUNGSTROM.

No. 45.

United States Court of Appeals, Eighth Circuit.

April 23, 1907

Theodore H. Thomas (Thornton H. Thomas, on the brief), for petitioner.

Frank L. Grant (Lewis B. Johnson, Edwin A. Van Cise, Henry T Rogers, Lucius M. Cuthbert, and Daniel B. Ellis, on the brief), for respondent.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS District judge.

VAN DEVANTER, Circuit Judge.

This is an original petition for the revision in matter of law of an order of the District Court confirming an order of a referee in bankruptcy denying a claim to certain exemptions asserted by the wife of a bankrupt.

Because it was not presented within 10 days after the making of the order sought to be revised, the respondent has moved to dismiss the petition; his contention being that our jurisdiction, under section 24b, of the bankruptcy act of July 1, 1898 (30 Stat. 553, c. 541 (U.S. Comp. St. 1901, p 3432)), to revise in matter of law proceedings in bankruptcy can be invoked only within the ten days limited for taking appeals under section 25a. The decisions upon this and correlated questions have not been harmonious (see Act March 2, 1867, c. 176, 14 Stat. 518, 520, Secs. 2, 8; Littlefield v. Delaware, etc., Co., Fed. Cas. No 8,400; Bank v. Cooper, 20 Wall. 171, 177, 22 L.Ed. 273; In re Good, 39 C.C.A. 581, 99 F. 389; In re Worcester County, 42 C.C.A. 637, 641, 102 F 808, 812; Steele v. Buel, 44 C.C.A. 287, 104 F. 968; In re New York Economical Printing Co., 45 C.C.A. 665, 106 F. 839; In re Groetzinger & Sons, 62 C.C.A. 124, 127 F. 124; In re Friend, 67 C.C.A. 500, 502, 134 F. 778, 780; s.c., 197 U.S. 620, 25 Sup.Ct. 797, 49 L.Ed. 909; In re Holmes, 73 C.C.A. 491, 142 F. 391), but, as the order sought to be revised is not one of those made specially appealable by section 25a, and as the petition was presented within the six months generally limited for invoking the appellate jurisdiction of a Circuit Court of Appeals (Act March 3, 1891, c. 517, 26 Stat. 829, Sec. 11 (U.S. Comp. St. 1901, p. 552)), we think the motion to dismiss must be denied (Steele v. Buel, supra; In re Holmes, supra).

One of the exemptions asserted by the petitioner and denied by the order in question was a homestead exemption in certain real property in Colorado. The material portions of the statutes of the state creating such an exemption are as follows (Mills' Ann. St. Secs. 2132, 2133, 2134, 2137):

'Sec. 2132. Every householder in the state of Colorado, being the head of a family, shall be entitled to a homestead not exceeding in value the sum of two thousand dollars, exempt from execution and attachment, arising from any debt, contract or civil obligation entered into or incurred after the first day of February, in the year of our Lord one thousand eight hundred and sixty-eight.

'Sec. 2133 (as amended). To entitle any person to the benefit of this act, he shall cause the word 'homestead' to be entered in the margin of his record title to the same, which marginal entry shall be signed by the owner making such entry and attested by the clerk and recorder of the county in which the premises in question are situated, together with the date and time of day on which said marginal entry is so made; provided, that in case the husband is the owner of said homestead, the wife may cause such entry to be made and recorded, and the signature of the said entry by the wife shall have the same effect as if entered by the husband, the owner of the property. And, in case the wife is the owner of the homestead, and shall fail to make such homestead entry, the husband may cause the homestead entry to be made, and the signature thereof by him shall have the same effect as if the entry had been made by the wife, the owner of the property.

'Sec. 2134. Such homestead shall only be exempt as provided in the first section of this act, while occupied as such by the owner thereof, or his or her family.'

'Sec. 2137 (as amended). That nothing in this act shall be construed to prevent the owner and occupier of any homestead from voluntarily mortgaging or otherwise conveying the same; provided, no such mortgage or other conveyance shall be binding against the wife of any married man who may be occupying the premises with him, unless she shall freely and voluntarily, separate and apart from her husband, sign and acknowledge the same, and the officer taking the acknowledgment shall fully apprise her of her rights and the effect of signing the said mortgage or other conveyance; and provided, further, that if the owner of said homestead be the wife of any married man who may be occupying the premises with her, no such mortgage or other conveyance shall be binding against said husband, unless he shall sign and acknowledge said mortgage or other conveyance.'

The bankruptcy act invests the courts of bankruptcy with authority to 'determine all claims of bankrupts to their exemptions' (section 2, cl. 11); requires the bankrupt to 'prepare, make oath to, and file in the court within ten days, unless further time is granted, after the adjudication, if an involuntary bankrupt, and with the petition if a voluntary bankrupt, a schedule of his property, * * * and a claim for such exemptions as he may be entitled to' (section 7, cl. 8); directs trustees to 'set apart the bankrupt's exemptions and report the items and estimated value thereof to the court as soon as practicable after their appointment' (section 47a, cl. 11); provides that 'all property of the debtor conveyed, transferred, assigned or incumbered as aforesaid'-- that is, 'subsequent to the passage of this act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay or defraud his creditors, or any of them'-- 'shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors' (section 67e); and also provides:

'Sec. 6. This act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the State laws in force at the time of the filing of the petition in the state wherein they have had their domicile for the six months or the greater portion thereof immediately preceding the filing of the petition.'

'Sec. 21. * * * (e) A certified copy of the order approving the bond of a trustee shall constitute conclusive evidence of the vesting in him of the title to the property of the bankrupt, and if recorded shall impart the same notice that a deed from the bankrupt to the trustee if recorded would have imparted had not bankruptcy proceedings intervened.'

'Sec. 70. (a) The trustee of the estate of a bankrupt, upon his appointment and qualification, * * * shall * * * be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all * * * (5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him.'

So far as it is now material to state them, the facts found by the referee are these: For several years the bankrupt and his family, consisting of himself and his wife, the present petitioner, had occupied the premises in controversy as a home. He was the owner and his title had been duly recorded. Shortly before the filing of the creditor's petition, upon which he was adjudged a bankrupt, he suddenly left the state with the apparent intention of never returning and of deserting his wife. She continued to occupy the premises as a home. Neither he nor his wife caused the word 'homestead' to be entered in the margin of his record title until after the time of the filing of the petition in bankruptcy, after he had been adjudged a bankrupt, after the appointment and qualification of the trustee, and after the trustee had caused the premises to be inventoried and appraised and was proceeding to sell them under an order of the court; but before the day fixed for the sale the wife caused such an entry to be made and thereby effectually designated the premises as a homestead, if she could do so at that time. She thereupon presented to the referee a petition, praying that the trustee be directed to set apart the premises as an exempt homestead.

As was said by this court in the case of In re Nye, 66 C.C.A. 139, 133 F. 33:

'The express terms of the bankruptcy act are such that it does not affect the allowance to bankrupts of the exemptions which are prescribed by state laws, and does not invest the trustee with the title to property which is exempt. * * * The provisions authorizing bankrupt courts to determine all claims of bankrupts to their exemptions, and directing trustees to set apart the bankrupt's exemptions, * * * disclose no purpose to render the exemptions less beneficial than intended by the state laws, but are in harmony with the purpose of the act, disclosed in other provisions, to make those laws the measure of the extent and nature of the exemptions, as well as of the right to them.'

The present case, however, presents the question: At what point of time must the bankrupt be entitled to a particular exemption under the state laws to have it allowed and set apart under the saving and protecting provisions of the bankruptcy act? The answer must, of course, be found in that act. Naturally, it would be expected that this point of time would not be later than the date as of which the general estate of the bankrupt is...