160 Ga. 22 | Ga. | 1925
As appears from the undisputed evidence, Mrs. Joseph T. Crews had saved from her earnings five hundred dollars in money, and’ her mother had given her two hundred and fifty dollars more for the purpose of buying a home for her old age. Mrs. Crews procured her husband to visit Carroll County and inspect certain farms, which he did, and found one which could be purchased for the sum of seven hundred and fifty dollars. This was in the year 1907. Crews returned to West Point, where he was then living, and obtained from his wife the $750 with which to purchase theffarm, paid the money to II. C. Jones, and Jones executed to him a deed. It is undisputed that the money was the property of Mrs. Crews, and that she directed that the title to the land should be placed in her and not -in her husband; but when Jones tendered the deed conveying the property to the husband instead of the wife, the husband made no objection, and thus took title to himself. There is no contradiction in
On April 28, 1922, Joseph T. Crews filed his petition in bankruptcy; and on May 23, 1922, the trustee in bankruptcy filed a petition with the referee, alleging that the 100 acres of land (as well as other property not involved in this case) had been omitted from the schedule of the bankrupt; and he asked that a rule be issued calling upon Mrs. Crews to show cause why she should not deliver possession of this land and why it should not be sold as the property of the bankrupt. In response to this rule Mrs. Crews filed an answer in which she claimed the land as her own, setting-up the grounds upon which she based her claim, and asking that the land be decreed to be her property. After the hearing on June 3, 1922 (at which J. T. and Mrs. Crews were present and testified) the referee disregarded her answer, holding the claim to be ill founded, and ordered the land to be sold on the day fixed in his order. On July 4, 1922, after advertisement, the land was sold and was purchased by Folds, trustee for certain named creditors of the bankrupt. The referee passed an order confirming the sale, and the trustee executed a deed to Folds as trustee for the named creditors. Afterward, possession of the premises having been refused, Folds, individually and as trustee, filed an equitable petition for the possession of the land, against both Joseph T. Crews and Mrs. Crews, alleging in detail the foregoing facts touching the bankruptcy proceedings.
Jurisdiction of the person may be waived by consent of a party
Conceding then, though not deciding, that the referee, sitting as a court of bankruptcy, had jurisdiction of the person of this claimant by reason of a waiver arising from her failure to protest
It is to be noted in this case that the petition alleges that Mrs. Crews is in possession of the land. It is alleged that her deed was of record on April 27, 1922, and that the adjudication was
In the Comingor case, supra, rules were laid on an assignee by the referee in the bankruptcy proceedings to show cause why he should not pay over the sums of $3398.90 and $3200.00, alleged to belong to the bankrupt’s estate; in response to which the assignee showed as cause that he had paid the $3200.00 to counsel for services rendered to him as assignee, and had retained the $3398.90 as his own commissions as such, all before the petition was filed, and he also, prior to the final order of the district court, objected before the referee and before the district court that he could not be proceeded against by summary process, for want of jurisdiction. The rules were made absolute by the referee, and the assignee was ordered to pay over the two sums in question, and that action was affirmed by the district court. “Held: (1) That as to these sums the assignee asserted adverse claims existing at the time the petition was filed, which could not be disposed of on summary proceeding. (2) That the bare fact that the assignee was named as one of the defendants to the petition in bankruptcy did not make him a party to the bankruptcy proceedings for all purposes. (3) That in responding to the rules laid on him, the assiguee did not voluntarily consent that he might be proceeded against in that manner, and that jurisdiction to do so could not be maintained.” From the opinion, delivered by Mr. Chief Justice Fuller, it is plain that the underlying reason for the rulings to the effect that the rights of an adverse claimant can not be adjudicated upon a mere rule is that he is entitled to seek his rights in plenary proceedings, and it is for that reason that jurisdiction in the court can not be implied where any issue of fact may arise which may affect the rights of the claimant. Mr. Chief Justice Fuller said: “The circuit court was called on to review the orders of the referee as confirmed by the district judge, by which Comingor was required to pay over the sums of $3398.90 and $3200 respectively, and the recommendation that he be dealt with for not complying therewith. On the face of his responses, from first to last, it appeared that Comingor insisted that the $3200 had been paid by him to his counsel' while
Judgment reversed.