126 F. 891 | M.D. Penn. | 1904
Having made claim to his exemption in his schedules, the bankrupt must be regarded as in time, notwithstanding the fact that his goods have meanwhile been converted into money by a receiver’s sale as perishable, and he is now remitted in consequence to the proceeds. In re Le Vay, 125 Fed. 990. But the question is whether he is entitled to obtain his exemption out of goods which, prior to the institution of the proceedings, he had voluntarily transferred as a preference to another. If the transfer was not simply preferential, but covinous, with intent to hinder or defraud creditors, he would certainly be cut off, according to the interpretation put upon the state law in Pennsylvania, the right being uniformly denied where a fraud in fact has been perpetrated. Huey’s Appeal, 29 Pa. 219; Imhoff’s Appeal, 119 Pa. 350, 13 Atl. 279; Kreider’s Estate, 135 Pa. 578, 79 Atl. 1073; In re Yost (D. C. Pa.) 9 Am. Bankr. Rep. 153, 117 Fed. 792. It is argued that such is the case here, but, although there may be some things that look that way, I am> not prepared, on the whole, to so find. The question is therefore squarely raised whether the exemption can be claimed out of a preference that has been recovered back.
The decisions on the subject are conflicting. It is held that it cannot in In re Tollett (D. C. Tenn.) 5 Am. Bankr. Rep. 305, 105 Fed. 425; In re White (D. C. Mo.) 6 Am. Bankr. Rep. 451, 109 Fed. 635; In re Long (D. C. Pa.) 8 Am. Bankr. Rep. 591, 116 Fed. 113; and In re Evans (D. C. N. C.) 116 Fed. 909; and while the Tollett Case was reversed'by the Court of Appeals of the Sixth Circuit (5 Am. Bankr. Rep. 404, 106 Fed. 866, 46 C. C. A. 11), it was only on the ground that the exemption there claimed was a homestead, which under the state law inured to the benefit of the wife as well as the husband, and was not lost by anything short of a fraudulent transfer. On the other hand, the right was sustained by the Court of Appeals of the Eighth Circuit, Sanborn, J., dissenting, in In re Falconer, 6 Am. Bankr. Rep. 557, 110 Fed. 111, 49 C. C. A. 50, and by the Court of Appeals of the Sixth Circuit, Pardee, J., dissenting, in Bashinski v. Talbott, 119 Fed. 337, 56 C. C. A. 241. The Falconer Case, however, arose in Arkansas, and is admittedly influenced by the law of that state, according to which it is held that a debtor may have his home-; stead exemption set apart to him even out of land which he has fraudulently conveyed, and which his creditors have succeeded in getting back (Carmack v. Lovett, 44 Ark. 180), a doctrine which would hardly be accepted in Pennsylvania. In view of this diversity of opinion, the question must be resolved here on principle as one of first impression. It is to be decided, in my judgment, not by the local law, which varies from state to state, but by reference to the provisions of the bankrupt act itself, from which the whole doctrine of preferences springs, and to which we must therefore resort to determine the result.
It is said, however, that there is a distinction to be drawn between a preference which is only recovered at the end of litigation and with expense to the estate, and one which, as here, is voluntarily surrendered at the outstart, and thus passes into the hands of the trustee at once, along with the rest of the estate. But so far as the bankrupt is concerned a preference is a preference, under whatever circumstances it is given, or whatever be the outcome with regard to it. It may be so manifestly voidable that the creditor concludes to surrender it
The action of the referee in disallowing the exemption is affirmed.