118 F. 312 | N.D. Iowa | 1902
The question at issue in this case arises between the bankrupt and one Dan Wolf, a creditor, whose claim, in the sum of $1,585.06, has been duly proved and allowed by the referee.
Upon the allowance of the claim, the creditor Wolf filed a petition before the referee, asking that the sum of $900, in the hands of the trustee, and claimed by the bankrupt to be the proceeds of the sale of his homestead, should be appropriated by the trustee to the payment of his claim on the ground that the debt due him had been incurred by the bankrupt before the acquisition of the homestead right, and therefore, under the provisions of the Code of Iowa, the homestead and its proceeds were not exempt from liability for the claim of petitioner.
“That bankrupt owned and occupied a farm homestead in Clayton county, Iowa, continuously from 1868 to 1900. That on March 29, 1900, he purchased a house and lot in the town of Elkader. That in the latter part of March, or first part of April, 1900, he abandoned the farm homestead, and made the house and lot in Elkader his homestead. That the new homestead was of no greater value than the old one. That the indebtedness of bankrupt to claimant, Wolf, was incurred March 6, 1900, and prior to the acquisition of the last homestead. That on February 4, 1902, bankrupt sold his farm in Clayton county and his home in Elkader. That the homestead sold for $900, and the farm for $3,600; both tracts being sold together. That bankrupt in said deal took a note and chattel mortgage of one E. F. Cords for $1,750, and afterwards discounted said Cords note to White & Miller for $1,400. That the trustee of said bankrupt’s estate collected said $1,400, less $38, which comprised a bill said White & Miller had against bankrupt, and $5 they had paid to him on account of the purchase of said $1,750 note and mortgage. That the trustee has said money in his custody at the present time. That bankrupt and his wife, at the time of the sale of said Elkader homestead, intended to invest the proceeds of such sale in a new homestead, and that they still so intend if they can procure the money.”
Upon these facts, the referee held that the bankrupt was entitled to the proceeds of the homestead as against the claim of the petitioner, but, as he had discounted the proceeds of the sale to the amount of $350, such discount must be equitably divided and apportioned so as to impose upon the contract price of the homestead its share of the discount, to wit, the sum of $70; the final order being that the trustee should pay over to the bankrupt the sum of $830 as the amount realized from the sale of the homestead.
Exceptions were taken to the ruling of the referee, and the questions at issue were thereupon certified to the court for determination.
The provisions of section 2981 of the Code of Iowa, as construed by the supreme court of the state (Benham v. Chamberlain, 39 Iowa, 358; State v. Geddis, 44 Iowa, 537; Schuttloffel v. Collins, 98 Iowa, 576, 67 N. W. 397, 60 Am. St. Rep. 216), authorize the sale of the homestead and the reinvestment of the proceeds in another homestead, which will be exempt from liability for debts not enforceable against the first homestead. The referee found, as a question of fact, that when the Elkader home was sold it was the intent, and still is, of the bankrupt and his wife, to invest the proceeds realized from the sale of their home in the purchase of new homestead.
In the case of Schuttloffel v. Collins, supra, it was said:
“Tbe question of fact in tbe case is, was it the intention of tbe husband and wife to use the proceeds of the sale for the acquisition of a new homestead? If so, the money was exempt from the claims of the creditors of the husband. * * * It is not necessary that the old homestead be sold for cash, which is immediately invested in a new one. The sale may be on time, and if the intention is to invest the proceeds, when realized, in the new homestead, such proceeds will be exempt.”
These decisions, as applied to the facts of this case, make it clear that the bankrupt is entitled to the proceeds of the Elkader property in the hands of the trustee as against his general creditors; but it is claimed by the petitioner that the debt due him was created before the Elkader home was acquired, and therefore it and the proceeds
The action of the referee in charging the discount proportionately upon the proceeds of the homestead and farm property fairly meets the equities of the situation, and the exceptions thereto are overruled.