97 F. 543 | W.D. Wis. | 1899
This is an appeal from an order of the referee denying the claim of the bankrupt to have set off by the trustee as exempt property all the crops raised upon ids homestead of 40 acres, in addition to the exemptions of specific personal property provided by statute. The bankrupt filed a voluntary petition in,bankruptcy in June, 1899, asking for leave to turn over to a trustee for the benefit of his creditors all his property not exempt by law, and to be discharged from the payment of his debts. The petition of the bankrupt shows thqt at the time he filed his petition there was growing on his homestead 9| acres of corn, 8 acres of oats, and 10 acres of hay; that, the remainder of the homestead is occupied with the garden, pasture ground, and buildings. The trustee set apart for a year’s support of the bankrupt and his family and stock 200 bushels of corn, 200 bushels of oats, and 8 tons of hay, and scheduled the balance of the crops grown for sale. It is conceded that the trustee has set apart all that the statute would allow, unless the crops growing on the homestead are exempt, in addition to other statutory provisions, as a part of the homestead. But he claims these crops in addition to all the other exemptions of personal property. The referee decided that the claim could not be allowed, and this appeal is from the order denying the same.
The statute of this state is very liberal in its provisions for the debtor against seizure and sale upon execution, and, were it not for some decisions in other states, — -notably by the supreme court of Iowa in Morgan v. Rountree, 55 N. W. 65, Cox v. Cook, 46 Ga. 301, and Alexander v. Holt, 59 Tex. 205, — I would think this not so much a question of the proper construction of our statute (for its provisions seem to be clear), as it is whether the court will allow to the bankrupt who seeks to be discharged from the payment of his debts a large amount of personal property over and beyond what the legislature, in its wisdom, has thought proper to exempt. And the only reason that I could suggest why, in the 50 years (luring which the exemption laws of Wisconsin have been admmúsl ered
As stated by the referee in his opinion, the statutes of Georgia and Texas are so unlike our statute as to make the decisions in these states of little value here. In the Northern district of Texas, notwithstanding the decisions of the state court, it was held in Re Coffman (D. C.) 93 Fed. 422, which was similar in its facts to the case at bar, that a bankrupt cannot hold as exempt crops growing on the homestead at the time of the adjudication in bankruptcy. This decision is in line with the decision of the supreme court of California in Horgan v. Amick, 62 Cal. 401, and Erickson v. Paterson, 47 Minn. 525, 50 N. W. 699, and the recent decision of the
In Morgan v. Rountree, supra, the question certified to the su preme court of Iowa by the trial judge was this: “Where the judgment debtor, who is a resident of this state, and the head of a family, is temporarily absent from her homestead for one year, for the purpose of educating her daughter, and voluntarily executes a lease of the homestead to a tenant during the said period, are moneys due to thé debtor from- the tenant for the i*ent exempt from execution against the judgment debtor?” The court answers this question — which was the only one before it in the case — in the affirmative. The question there decided is not before this court, though the Iowa case is the one perhaps mainly relied upon by counsel for the bankrupt. That court, after deciding the one question before it, proceeded to say that the growing crops would also be exempt, — a question which is now squarely before this court under a statute somewhat similar, but was not in the case before that court at all. The court regrets, in the opening line of its decision, considering the importance of the question certified, that the case was argued by counsel only upon one side. That is, I believe, always considered as desirable; and possibly, if the court could have had the benefit of argument upon both sides of the case, it might have come to a different conclusion, or, if not that, would have been enabled to keep more closely to the one issue submitted. It may be that the question submitted was correctly decided., That question is not before this court. Leaving the’ homestead for temporary purposes, as she might do, the rent reserved represented the rental value of realty which was itself exempt by law. But growing crops represent much more, to wit, capital and labor expended in planting and tending the crop, which might be many times the rental value. I do not, therefore, consider the case an authority in point, and, if it were, I should not feel at liberty to follow it.
Some cases decided by the supreme court of this state have been cited, but it is evident that this question has never been before it. Among other cases, that of Phelps v. Rooney, 9 Wis. 70, is referred to. This is a leading case upon the point involved, though made by a divided court, Chief Justice Dixon delivering two vigorous dissenting opinions. Rooney owned a building upon one of the principal business streets in Milwaukee, which was built for a store. He leased the basement and main floor for a store at a yearly rent of 11,500, but resided, with his family, in the upper stories of the house. The question litigated was whether such a building could be regarded as the dwelling house of the debtor. The chief justice thought you might as well say that, if a man lived on a steamboat it made the steamboat his dwelling house, or if Diogenes lived in a tub it made the tub a dwelling house. But a majority of the court held it to be a dwelling house, and the entire building and ground exempt, and that the owner could not alienate the same by mortgage without the consent of the wife. There was no question in the case as to whether the rent received or due would be exempt