Wilcons v. Penn Mut. Life Ins. Co., 1448.

• Decision Date: 06 July 1937
• Docket Number: No. 1448.,1448.
• Citation: 91 F.2d 417
• Parties: WILCONS v. PENN MUT. LIFE INS. CO. et al.
• Court: U.S. Court of Appeals — Tenth Circuit

91 F.2d 417 (1937)

WILCONS v. PENN MUT. LIFE INS. CO. et al.

No. 1448.

Circuit Court of Appeals, Tenth Circuit.

July 6, 1937.

William Keith, Chas. G. Yankey, Harvey C. Osborne, John G. Sears, Jr., and Verne M. Laing, all of Wichita, Kan., for appellant.

Dean McElhenny, and Philip C. Gault, both of Topeka, Kan. (Frank P. Barker, of Kansas City, Mo., McElhenny & Gault, of Topeka, Kan., and Winger, Reeder, Barker & Hazard, of Kansas City, Mo., of counsel), for appellees.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

LEWIS, Circuit Judge.

Appellant, a farmer residing upon and conducting farming operations on a 400-acre farm in Sedgwick County, Kansas, filed his petition and schedules on January 13, 1936, under section 75 of the Bankruptcy Act, as amended (11 U.S.C.A. § 203). He named The Penn Mutual Life Insurance Company of Philadelphia and The Equitable Life Assurance Society of New York City in his schedules as his only secured creditors, holding mortgages on his entire farm, one covering 240 acres and the other 160 acres. His schedules disclosed that each mortgage had been foreclosed in the Sedgwick County District Court; that each tract had been sold by the sheriff to the mortgagee, in the Penn Mutual case on April 26, 1933, and in the Equitable Life case on October 25, 1933; that sheriff's deeds had not been issued to the purchasers, but that certificates of purchase had been issued; that before the original periods of redemption allowed by the state district court pursuant to statute expired that court had entered orders of extension so that the extended periods had not expired when the petition in bankruptcy was filed. Only two other creditors were named, they as unsecured, a bank holding the farmer's note for $200 and the treasurer of Sedgwick County a claim for taxes of $364.10.

On February 1, 1936, each of the insurance companies lodged with the commissioner a motion to dismiss the proceeding as to it on the grounds that it was the owner of a vested equitable estate in the lands which are claimed by the farmer as an asset but which they respectively purchased at foreclosure sale; that the court has no jurisdiction over the movant or over its interests in said land for the reason that no relation of debtor and creditor existed between the farmer and them at the time the petition was filed; and for other reasons.

The commissioner heard these motions on February 25, 1936. He made findings of fact and conclusions of law. In his findings he states when the foreclosure suits were instituted, one in December, 1932, and one in August, 1933; dates of rendition of judgment in each case, one in March, 1933, and one in September, 1933; the amounts of those judgments; dates of orders of sale, one in March, 1933, the other in September, 1933; the dates of sales, one in April, 1933, the other in October, 1933; the amounts bid; that one sale was confirmed in April, 1933, the other in October, 1933; the redemption periods, eighteen months in each case; the date of expiration of each period; the dates of extensions of periods of redemption by the state court, each entered May 1, 1935; and the expiration of the extensions, one January 15, 1936, and the other March 1, 1936. He stated that certificates of purchase had been issued to the purchasers but no deeds had issued. He concluded as matter of law that the relationship of debtor and creditor did not exist between the farmer and the companies; that the companies as holders of the certificates of purchase held vested equitable title to the lands respectively because of the orders of the state district court confirming the respective sales; and that he (the commissioner) had no jurisdiction over the property in so far as it affected the rights of the holders of the certificates of purchase, and that the proceedings as to them should be dismissed.

Counsel for the farmer filed exceptions to the action of the commissioner in sustaining the motions and challenged his jurisdiction to act in that regard as well as the soundness of his conclusions. The objections and exceptions were presented to the District Judge. He made no findings, expressed no opinion, and took no action other than to confirm the conclusions of law made by the commissioner and to sustain the commissioner in dismissing the proceedings in so far as they affect the insurance companies and their interests in the real property to which they hold certificates of purchase. This appeal is from that order. The assignments of error are directed almost entirely to the action of the commissioner as being beyond his...