Rafert v. Equitable Life Assur. Soc. of United States

• Decision Date: 03 January 1944
• Docket Number: No. 12568.,12568.
• Citation: 138 F.2d 185
• Parties: RAFERT v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

138 F.2d 185 (1943)

RAFERT v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 12568.

Circuit Court of Appeals, Eighth Circuit.

October 25, 1943.

Writ of Certiorari Denied January 3, 1944.

S. L. Winters, of Omaha, Neb., for appellant.

Winfield R. Ross, of Omaha, Neb., for appellee.

Before WOODROUGH, THOMAS, and JOHNSEN, Circuit Judges.

Writ of Certiorari Denied January 3, 1944. See 64 S.Ct. 431.

THOMAS, Circuit Judge.

This is an appeal from an order entered in a farmer-debtor proceeding under § 75, sub. s, of the Bankruptcy Act, 11 U.S.C.A. § 203, sub. s. In re Rafert, D.C., 48 F. Supp. 459.

On a former appeal in the same proceeding an order of the district court directing the appointment of a trustee to dispose of or liquidate two mortgaged farms belonging to the debtor was reversed and the court was instructed to restore the lands to the bankruptcy proceeding and to proceed under § 75, sub. s. Rafert v. Conway et al., 8 Cir., 119 F.2d 102. One only of the two farms is involved in this appeal — the one subject to a mortgage owned by the appellee, the Equitable Life Assurance Society of the United States, hereinafter called the Equitable.

In compliance with the mandate of this court, Judge Donohoe entered an order on August 9, 1941, staying all judicial proceedings in any court against the debtor or any of his property for a period of three years. The order provided that during the three-year period the debtor should pay share rent and $10 cash per year for the use of the buildings and lots and the well. The three-year period would expire on August 9, 1944, and the order provides that "if the debtor shall remain in possession for a portion of the 1944 crop year (considered as beginning on March 1, 1944), he shall pay rent proportionately for the time of such occupation."

The amount and kind of rentals provided for in this order conformed to the terms of a stipulation entered into between the debtor and the Equitable on July 25, 1941; and there is no complaint in respect of this feature of the order.

The debtor does not operate his farms personally but lets them to tenants. The stipulation of July 25, 1941, provided: "* * * the debtor to pay said cash rentals promptly upon receipt thereof from his respective tenants; * * * to be paid to the Clerk of the United States District Court." This provision as to time of payment was omitted in the order of August 9, 1941.

On April 6, 1942, Equitable filed a petition representing that the debtor had paid the 1941 rentals for small grain but had failed and refused to pay the proceeds received from the sale of the 1941 corn and the cash rent and stating that taxes are unpaid in the amount of $685. An order was requested fixing the time for paying future rentals in accordance with the terms of the stipulation and directing the debtor to pay all rentals promptly.

On April 22, 1942, it was stipulated that the debtor had on that day accounted for all 1941 rentals except $19 which would be paid as soon as received from the tenant.

The petition filed on April 6, 1942, came on for hearing before Judge Delehant on April 27, 1942, and an order was entered on that day approving and confirming the stipulation of April 22, 1942, and ordering that "the rent share of all crops raised during the pendency of bankrupt's moratorium be sold promptly after they are harvested and the proceeds forthwith paid into the Registry of the Court * * * that the cash rental * * * be paid on December 1 of each year and that the rent share of conservation money, if any, be paid into Court promptly upon receipt thereof." Although this provision fixing time of payment of rentals conforms to the terms of the stipulation of July 25, 1941, it is the sole basis of the debtor's present complaint.

No appeal was taken from this order.

On December 14, 1942, Equitable filed a petition informing the court that the debtor had failed and refused to pay rentals into court in obedience to the order of April 27, 1942, and asking for an order enforcing payments in compliance therewith and for the appointment of a trustee to liquidate the estate. The debtor answered, admitting his failure to turn over the rentals to the court under the order of April 27, 1942, and asserting that the order was entered under a misapprehension of the provisions of § 75, sub. s, and without jurisdiction of the court. After a hearing the conciliation commissioner reported, recommending that the debtor be given until February 1, 1943, to comply with the order and pay the rentals, and that in the event he failed to make such payments before that date a trustee be appointed to liquidate the estate.

The debtor filed a petition to review the report of the conciliation commissioner and objected to his recommendations. He admitted that he had collected certain rentals from his tenant and that the corn had been harvested and was in his possession. He contended that the order of April 27, 1942, was beyond the power of the court and was void. His contention was that the Act itself fixes the time for paying rentals; that the rent for the first year is not due and payable until the end of the year after entry of the stay order and that the rentals for the second and third years are payable in equal semi-annual installments; that is, that the rentals for 1941 were not payable before August 9, 1942, and that the rentals for the crop season of 1942 are payable in equal parts on February 9 and August 9, 1943. In the hearing before the commissioner he testified that he...