238 F. 621 | D. Mont. | 1916
' “No lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.”
The chapter referred to is that of the federal original homestead law, providing for entries of 160 acres or less. Later homestead enactments (35 Stat. 639; 37 Stat. 123) permit entries for as much as 320 acres — enlarged homesteads — of public lands of certain quality and subject to somewhat different conditions. These latter are but additions to and amendments of the original law, and upon settled principles all form a whole, to be taken and read together as though the later enactments were part of the original law from the beginning, so far as the protection extended by section 2296 is concerned. ■ Said section provides protection; other sections define the area protected. Changes in the latter affect not the former. Hence enlarged homesteads are “lands acquired under the provisions of this chapter,” within section 2296, and are entitled to its protection, even as lesser or ordinary homesteads are.
“The rights of a bankrupt to property as exempt are those given him by the state statutes.” Smalley v. Laugenour, 196 U. S. 97, 25 Sup. Ct. 216, 49 L. Ed. 400.
The exempt status exists regardless of debts, even though there be none, or be barred by limitations, or not asserted, or forgiven. This status, and not the existence or nature of the debts, determines whether or not title passes to the trustee. Although a bankrupt’s debts are of such nature that all be entitled to prevail over the exemption, yet by reason of its status the title to the exempt property will not pass to the trustee, and it must be set aside to the bankrupt for the procedure above indicated; for the Bankruptcy Act so orders.
Mere land office delay, sometimes continuing for years, even if it could, should not protect debts contracted after final entry and patent due. There is difference of opinion, but the weight of authority and better reason warrant this conclusion. See cases, 5 Comp. Stats. (1916) 5371. In all herein, it is found impossible to agree with In re Cohn (D. C.) 171 Fed. 568.
By reason of the ambiguities in the bankrupt’s pleadings, it does not appear none of his' debts were contracted after final entry, taken to be of date of final proof, alone set out by.him. If none such, or if of small amount {and the entire proceedings before the referee will determine, and not this proceeding alone), the course above indicated may be followed.
The referee’s order is confirmed.
<@nn>For other oases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes
<gs»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes