Wight v. Street

Decision Date30 January 1933
Docket NumberNo. 6791.,6791.
Citation63 F.2d 80
PartiesWIGHT v. STREET.
CourtU.S. Court of Appeals — Ninth Circuit

C. H. Sooy, of San Francisco, Cal., for appellant.

Charles H. Patterson and M. Harris Callum, both of Oakland, Cal., for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.

SAWTELLE, Circuit Judge.

The trustee in bankruptcy filed a petition for a summary order requiring appellant, Florence A. Wight, a stranger to the proceeding, to show cause why an order should not be made in such proceeding determining that said appellant had no right, title, or interest of any kind in and to certain real property located on Market street, in the city of Oakland, Cal., and requiring said appellant to forthwith make, execute, and deliver unto the said trustee a proper deed of conveyance of said property. Later an amended petition was filed, alleging that on August 8, 1930, at the time of her adjudication as a bankrupt and for a long time prior thereto, the said bankrupt, Mintie E. Frisbie (hereinafter referred to as the bankrupt), was the owner and possessed of the above-mentioned real property. An order to show cause was duly issued and served. Appellant, appearing specially, filed her return to the order to show cause challenging the jurisdiction of the bankruptcy court to adjudicate the merits of her claim to the property in question in a summary proceeding without her consent. The motion was overruled. The trustee called as witnesses, among others, the bankrupt and the appellant. Appellant is the adopted daughter of the bankrupt.

The bankrupt testified that on August 15, 1913, she executed a declaration of trust covering the property in question, in words and figures as follows:

"Aug. 15, 1913. "Oakland, Calif. (1423 Grove St.)

"I hereby solemnly promise and pledge myself to neither sell, mortgage or transfer the said property situated or located on Market St., Oakland, Calif., between 15th and 16th street, known as 1528-32 Market St.; or let it pass out of my name with my consent to any one excepting my daughter Florence A. Christian; it being held in trust by me for her until she and I agree on a time for the transfer to her. In case of her death before she reaches the age of 21 years or a transfer is made, the property shall revert to me and in turn go to my heirs. In case I shall die first or before she does and in case she be not of legal age, then I desire that the Central Bank of Oakland, Calif., shall carry on the trust until the time arrives when the property shall be turned over to her; at no time do I want Hettie White (also known as Mrs. M. T. White) or any of her family to handle this trust; this property is for the sole benefit of my daughter, Florence A. Christian. Hettie White above mentioned cancelled all her rights to said Florence A. Christian at the time she was 8 mos. and 23 days old — by my adoption rights. My divorced husband (Fred H. Christian) I understand has made in writing a satisfactory settlement for our daughter's benefit and given it to Hettie White to keep; he also states he will join his settlement to this one of mine for the benefit of Florence A. Christian.

"I give as a mother to her child. "Mintie Christian now Frisbie "1423 Grove Street, Oakland, Calif "August 15, 1913."

The bankrupt testified that this instrument was given to her former husband to be combined with one he was supposed to execute in favor of appellant; that the document was returned to and retained by the bankrupt; that years before these proceedings in bankruptcy were instituted, the bankrupt...

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2 cases
  • Pinsky v. Duncan
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 25, 1990
    ...to file an intervenor's brief in this appeal, consistent with our resolution of a similar problem in Merrill v. Town of Addison, 63 F.2d 80, 82-83 (2d Cir.1985). The state elected to intervene, and we give careful consideration to its arguments in this A. Deprivation of a Protected Property......
  • Federal Shopping Way, Inc., Matter of
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 15, 1983
    ...Cobra Manufacturing Co., 214 F.2d 489, 491 (9th Cir.1954), cert. denied, 348 U.S. 912, 75 S.Ct. 291, 99 L.Ed. 715 (1955); Wight v. Street, 63 F.2d 80, 81 (9th Cir.1933). Consequently, where property is outside of the court's possession and the trustee claims no interest in the property what......

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