108 F. 599 | 7th Cir. | 1901
Lead Opinion
after making tlie foregoing statement, delivered the opinion of the court.
It is not clear that the motion to dismiss the petition because the petitioner is in contempt of the district court should not be sustained. The question is whether an adjudged bankrupt shall ,be heard to assert a claim for a homestead, of undetermined location or dimensions, while in contempt* of an order of the court requiring him to pay to the trustee a sum of money which he is wrongfully withholding, and when it appears that he had not included in his. schedule other moneys and property to a large amount, but had made fraudulent transfers thereof, and with his wife and family had abandoned their residence in the alleged homestead and had left the country.
The last clause of section 47 of the bankruptcy act malíes it the duty of trustees to “set apart the bankrupt’s exemptions and report the items and estimated value thereof to the court, as soon as practicable after their appraisement”; and by section 2 of the act the courts of bankruptcy are given jurisdiction to “determine all claims of bankrupts to their exemptions.” By section 6 the exemptions allowable are those prescribed by the state laws in force at the time of filing the petition in the state wherein the bankrupt has had the required domicile. In this instance the trustee refused to, recognize the homestead right Claimed, and the proceedings detailed in the statement of facts followed. While the last proceeding before the referee was treated by him as being “in the matter of the petition of Oliver 0. Duller, trustee, to take possession of and to quiet title to premises claimed as a homestead,” it was evidently not an independent proceeding, to which in any proper sense the bankrupt should be regarded as standing in the attitude of a defendant. It was, in fact, a part of the proceeding instituted by himself when he inserted in his schedule the claim for a homestead exemption. Before the referee and before the district court his position was essentially that of a claimant or petitioner asserting a right,, which the trustee, representing the estate, denied; and the order of February 8th did not change the relation of the parties to the question or to the proceedings. That order, it would seem, was interlocutory only. It did not in terms define the extent or boundaries of the homestead to be set apart. If it had, there would have been no need for further action on the part of the referee or trustee; but that such further action was contemplated, and in fact was necessary, the opinion and order of the court read together leave no room to doubt. There is. nothing in the opinion fixing the point to which the dividing line between the north and south halves of the premises should be extended except the words “to the rear of the unoccupied portion of the lot,” and, the frame dwelling house being on the west end of the lot, it was yet to be determined how much of the intervening space was or should be deemed to be appurtenant to or occupied by that house. The opinion of the court quite appropriately directed that its order be certified to the referee, in response to whose certified question the ruling was made, to the end, it is clear, that under the referee’s order, conforming, of course, to the order of the court, the trustee, on whom
When the homestead right is uncertain and so complicated with other property that the court must be asked to establish and define it, and it is made to appear, while the matter is under consideration or has not passed beyond the control of the court, that the bankrupt is withholding and concealing other property which ought to hare been scheduled and turned over to the trustee, and is evading an order of the court requiring him to pay over a specified sum, is it to be said that the court may not pause, but must proceed to determine as an independent matter the question of the bankrupt’s right to a homestead, even though it be apparent that he is withholding fraudulently money and property probably of greater value than the properly claimed to be exempt? Under the Wisconsin statute the price of a homestead may be held as exempt for two years, if it be done for the purpose of purchasing therewith another homestead. If in such case there should be an adjudication of bankruptcy, and the trusl.ee should obtain possession of money which the bankrupt claimed and was entitled to claim as exempt because of its being the proceeds of the sale of a homestead, ought the court, without inquiry into the facts, to order the trustee to surrender the money, notwithstanding the bankrupt, in willful disobedience of an order of the court, is alleged to be withholding and concealing other money and property to which the trustee is justly entitled? The question ought to answer itself (Pratt v. Burr [C. C.] 19 Fed. Cas. 1248), and there is no good reason for saying that a homestead unsold is any more sacred than the price of it when held for reinvestment: in another refuge for the family. If in this case no one hut the bankrupt himself were concerned, there could be no injustice in dismissing his petition to this court because of his contempt of the orders of the district court; and the fact that he has a wife and children does not seem to affect the legal aspect of the proposition. During the life of the husband, in whom is the title, the wife has by virtue of the homestead laws of Wisconsin no vested interest in the home, but simply control over the husband’s right: to convey or mortgage it, and even with that power she cannot hinder a change of domicile, upon which, the homestead right ceasing, the husband’s disability to convey or mortgage the land will also cease, except: that, irrespective of the law of homestead, a conveyance without her signature and acknowledgment will be subject to her inchoate light of dower. It was so declared in Godfrey v. Thornton, 46 Wis. 677, 683, 1 N. W. 362. We. however, are not called upon now to consider what would be the effect if a wife, refusing to follow her bus-
The court below, therefore, would have been justified in striking out the answer, or, at least, in refusing to hear the bankrupt’s attorneys in response to the petition of' the trustee, so long as he persisted in disobedience of the order to pay over money, and on that ground might well have set aside summarily the order directing the homestead to be set apart; but whether for that reason alone it would have been proper to declare the right of homestead forfeited and the trustee vested with absolute title may be questionable. With the order set aside or disregarded, the original question of the homestead right was open again for investigation; each party, unless precluded by being in contempt, having the privilege of introducing further proofs. So long as there had not been a final adjudication, or the term of court had not passed at which the adjudication was had, the bankrupt, though he had fied the country, was constructively in court and bound to take cognizance of what should be done. His absence could not deprive the court of the power to proceed to a final conclusion, though the fact and circumstances of his going and his family following him abroad afforded potent evidence that his claim for a homestead in any part of the property other than the frame dwelling, in which he had lived until shortly before the adjudication, was fraudulent in its origin, and that whatever such right he had had in the frame dwelling he-had forfeited by his fraudulent attempt, in anticipation of bankruptcy, to obtain a larger holding. His attempt to include the frame dwelling in the homestead the district judge declared “rapacious.” . His attitude and conduct as finally revealed were consciously fraudulent and lawless. If not strictly an equity court, a bankruptcy court proceeds on equitable principles and is not bound to lend itself to the establishment of an undetermined claim for exemption,, even though asserted in the sacred name of homestead, in favor of a fraudulent claimant, who stands in confessed defiance of the court and of the law under which the claim is asserted. “The homestead,” said Judge Bond in Re Dillard (C. C.) 7 Fed. Cas. 703, “was'a bounty to unfortunate, but honest, debtors. It was not intended for the benefit of fraudulent bankrupts.” “A party,” said Judge Miller in Pratt v. Burr, supra, “cannot turn that which is granted him for the comfort of himself and family into an instrument of fraud.’’
The case, however, is not before us on appeal to be reviewed upon its merits; and, passing the motion to dismiss, we are called upon to consider only the questions of law presented by the petition. As formulated, the questions proposed seem to be of law purely, but they include assumptions of fact not established by the record, and for that reason, perhaps, ought not to be considered. They assume the fact, which might well have been found to the contrary, that at the date of the adjudication of bankruptcy the particular property now in question was occupied by the bankrupt (in good faith) as a homestead; and, contrary to the indisputable fact, they assume that in the bankruptcy proceedings that property had been (finally and irrevocably) adjudged to be such homestead. Enough has been said
But, assuming the question to be before us in proper form, is it true, by (be letter of the statute, that in no case and in no sense does the title to exempt property vest in the trustee? If so, and if there can be no escape by construction, then of this statute more than any other known to us the spirit is sacrificed to the letter. Illustrations may readily be suggested. When the claim is for the exemption of property which must be separated from other property of the bankrupt, until the right of exemption shall have been determined and the particular parts or parcels to be exempted designated, there can certainly be no impropriety in treating, and in order to reach just results in supposable cases it will be found necessary to treat, the title as having been sub modo in the trustee. If, for instance, as in Re Friedrich, 40 C. C. A. 378, 100 Fed. 284, the property consists of a stock of goods in trade, in which there is a disputed or a conceded right of exemption to a certain amount in value, is it not clear that the ti fie to the entire stock must be deemed to pass to the trustee, subject to the claim for- exemption, and that, when afterwards the exemption shall be allowed in specific articles, the title of the trustee to those articles will cease and to the other articles become absolute, and by relation be considered to ha ve been such from the date of the adjudication of bankruptcy? In all such cases, whether the property be personal or real, the claim for exemption, until determined and defined by the trustee or by the court, is not a title to specific property or articles, but is rather a limitation or charge imposed by the statute upon the title of the trustee. This view certainly may well be applied to a claim for a homestead right which has not been determined by the judgment of a competent court, and which is asserted over more property than can be included in it. Just what part, if any, of the property claimed in this instance should have been a-ppor-1 ioned and set off as a homestead, whether one part or another, or the whole, was matter for the court to determine, and, until that had been finally settled, it was not and could not be known what part should be exempted and what part should go (by relation had gone) absolutely to the trustee. After the entry of the order of February 8th it was in the power of the court, on motion or sua sponte, to change the order, so as to exempt the south instead of the north half of the double building, or the frame building instead of either; and, if that had been done, what then should be said of the title, either of the bankrupt or the trustee? That it shifted with the changing orders? Or, rather, that from the date of the adjudication the trustee held title
“The trustee * * * and his successor or successors * * * shall in turn he vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it (the title) is to property which is exempt, to all (1) documents relating to his property; * * * (5) property which prior to the filing of the petition he could by any moans have transferred, or which might have been levied upon and sold under judicial process against him.”
In Wisconsin a man may have a homestead, though he he without wife or child, and in such case, of course, may convey or otherwise dispose of the property at will. If he has a wife, he may convey the homestead, if the deed be signed, though not acknowledged, by her;
In Re Woodruff (D. C.) 96 Fed. 317, it was held that the bankruptcy court had jurisdiction to enforce, against property set apart by the trustee to the bankrupt as exempt under the laws of the state, the rights of creditors who hold notes or other obligations of [he bankrupt waiving exemptions, though (he obligations had not been reduced to judgment and did not otherwise constitute a specific lien upon the property; and in Re Sisler (D. C.) 96 Fed. 402, a like ruling was made. Both cases proceed on the theory of title in (.he trustee, though for the benefit of some only of the creditors. In the first, after distinguishing the opinion of Justice Bradley in Re Bass (C. C.) 2 Fed. Cas. 1004, the judge, in respect to the powers of the bankruptcy court and the spirit in which the statute is to be construed, said:
•‘The court of bankruptcy, as we have seen, is now given the express power •to determine all claims of bankrupts to their exemptions.’ Now, what .does this language import? If the court has the. power to determine that the bankrupt is entitled to his exemption as against the creditors, it certainly has the correlative power to determine the right of the creditor to attack the exemption upon any legal ground. This language is not a limitation upon the power of the court, to he strictly construed, hut it is a grant of jurisdiction. which must be beneficially construed to carry out its purpose. The language must have'a reasonable construction, and with the express grant of power to determine all claims of the bankrupt to his exemption diere seems clearly to go the power to determine that the bankrupt has no claim to exemption in favor of particular creditors, because under the constitution of this state as to them he has solemnly renounced and waived it.”
See, also, In re Wells (D. C.) 105 Fed. 762.
It was held by the court of appeals in the Ninth circuit, in Re Scheldt (C. C. A.) 104 Fed. 870, contrary to the decision of the court
The intention of this statute is, without doubt, that the creditors shall have all the estate of a bankrupt which is not exempt, and that the bankrupt shall have the exemptions' allowed by the law of his domicile, determined by relation to the date of .adjudication, “separating the past and the future”; but it does not follow, and may not reasonably be said to have been the intention of the statute, that a bankrupt, while concealing or withholding property or money which the law requires him to surrender to the trustee, may insist that the latter shall surrender to him other moneys or like property which the same law permits him to claim as exempt. Ordinarily and in a direct sense it is true, also, that “all after-acquired property goes to the bankrupt and with that the trustee has nothing to do”; but, again, it does not follow that with such property .or its proceeds a bankrupt may not be compelled, at the end of an execution or otherwise, to make good to- the trustee whatever of property or money he had failed to schedule and turn over. Neither in excuse nor mitigation of his disobedience of the court’s order would Mayer have been permitted to show, if he could, that before notice of the motion to show cause he had expended or lost the particular money ordered to be paid over, and was for that reason unable to pay it except with after-acquired means. -The statute certainly does not require or permit that upon such a plea he should be acquitted of contempt or relieved of the order of .commitment. The rights and duties created by the statute, in some measure at least, must be correlative.
Oases which arose under the act of 1867 can have little bearing. That act required a conveyance by the register to the assignee of “all the estate, real and personal, of the bankrupt,’’ but, besides providing that there should be excepted from, the conveyance the exemptions allowed by the laws of the state in which the bankrupt had his domicile, contained the further provision that “in no case shall the property hereby excepted pass to the assignee or the title of the bankrupt thereto be impaired or affected by any of the provisions of this act.” This language is perhaps too explicit to admit of construction, and yet cases are supposable in which it would have been impossible to say that under that act the title to real estate in which the bankrupt had a homestead did not vest in the assignee. An illustration is afforded by the case of Cox v. Wilder, 2 Dill. 45, 6 Fed. Cas. 684, where it appears that by the law of Missouri the head of a family wa's allowed exemption from execution in “any of his or her real estate, not exceeding (one hundred and sixty acres in farming land or one lot in a town or city) in value one thousand dollars at the date of such exemption, to be held and enjdyed by such party as a homestead”; and it was further provided that where the real estate
These decisions demonstrate the practical impossibility of denying to the assignee or trustee the power in frequent cases to sell and to transfer the title to exempt property, and it is therefore a fair inference that in the framing of the present act there was an intentional omission of the provision, so industriously reiterated in tlie act of 1867, that “in no case” should exempt property pass to tlie trustee. The language of the act of 1898 Is not so explicit and clear as to forbid construction. The trustee is vested by operation of law with the title of the bankrupt, “except in so far as it is to property which is exempt.” It certainly does no violence to this expression to treat it as meaning that the trustee is clothed with title to the property of the bankrupt in so far as the property is not exempt; and, the supreme court of Wisconsin having decided that the owner of real estate held as a homestead, though he have a wife, may convey the fee of the land if he reserves the homestead right for himself and wife, our holding in this, case, that the title passed sub modo to
We find in the questions propounded no reason for disturbing the order entered below.
Dissenting Opinion
(dissenting). The motion to dismiss needs little comment, since the majority opinion, sustaining the motion arguendo, declines to pursue the reasoning to its logical conclusion and proceeds to the discussion of the merits. It may not be amiss, however, to say this much: The decree of February 8, 1900, adjudged that the north half of the fiat be set apart as the homestead of the bankrupt. The opinion of the court, filed with that decree, designates the homestead as the north half of the flat “upon the center line of the party wall extended to the rear of the unoccupied portion of the lot.” If this decree be not self-executing, no duty in respect thereof devolved upon the trustee. If the statute imposed upon him the duty to set apart and segregate from the estate the homestead, — -a question fairly debatable, — the trustee had refused to perform that duty. The court had overruled his action, and had decreed the homestead right, performing itself the duty originally, possibly, devolving upon the trustee. He had no further duty in the premises. The decree is positive and final, and not less final because the length of the north and south lines is not stated. “That is certain which may be made certain.” The ascertainment of the lines, if essential, was for the court, and not for the trustee, and by the, opinion filed with the decree was referred, if to any one, to the referee, not to the trustee. The petition by the trustee of March 16, 1900, was, therefore, not one in excuse of nonperformance of the decree of February 8, 1900, but was at most a petition in the nature of a bill of review. The decree has not been appealed from or set aside. The petition contains no reference to it and seeks not to impeach its correctness. The petition would seem to have been prepared either in forgetfulness of or ignoring the decree. It treats the claim for a homestead as unadjudicated, and charges that it should be dismissed, because (1) the bankrupt stood in contempt of the court with respect to other matters, and (2) he had abandoned the homestead some six months after the adjudication of,bankruptcy, and prays that the bankrupt, then beyond seas, should be cited to
Passing, however, io the merits: By the law of Wisconsin the owneT of a homestead, without limitation of value, has an absolute estate therein with power erf alienation, limited only, in the interest of the; wife, so that he cannot dispossess himself of the right of oecnpane‘.y unless she join in (lie execution of the conveyance. There is also attached to that estate a privilege of exemption from pursuit by creditors so long as the property remains a homestead. At the death of the owner intestate the homestead descends to his widow' or children beyond reach of his creditors, although after his death it be abandoned as a homestead. The estate has all the incidents of a freehold except the restriction upon the power of alienation in the interest of tin wife. The superadded privilege of exemption would not seem to lessen the character of the estate. Does the title to such homestead pass to the trustee in bankruptcy? An answer to this question must be found in the bankruptcy act, for from that act alone the trustee derives his title to the bankrupt estate. He has sucli powers and rights of property as are therein conferred and no other. The act contemplates that the bankrupi shall be entitled to the exemptions allowed by the slate of his domicile. Section. 6 provides that the act shall not affect the allowance to bankrupts of the exemptions prescribed by the law of the state. Section 70a. defines the title which shall pass to the trustee. It declares that lie shall be “vested by operation of law with the title of the bankrupt as of the date lie was adjudged a bankrupt, except in so far as i,t is to property which is exempt.” The act is careful to restrict the transfer of title to property which is not exempt, and in one instance
The design of the lawmaker is clear that the title to the homestead, which by the state law is exempted from sale under judicial process, shall not pass to the trustee but shall remain in the bankrupt. The statute is plain; its language explicit. There is no room for construction. It is its own best expositor. This manifest design is not weakened by the provision of section 2, cl. 11, that the courts of bankruptcy shall have jurisdiction to “determine all claims of bankrupts to their exemptions.” The bankrupt is required by section 7, cl. 8, to file a schedule of his property and “a claim for such, exemptions as he ma.y be entitled to.” The right to a homestead may be challenged. The claim therefor may embrace more land than allowed by the state law. Undoubtedly the bankruptcy court is given jurisdiction — which before the act was lodged in all courts of general jurisdiction — to determine, if there be dispute, the right to and the extent and dimensions of the homestead. It was never deemed necessary to the determination of that question before the bankruptcy act, nor is it now necessary, that there should be an ad interim shifting of title. Upon determination of the question the court formally sets apart to the debtor and segregates from the estate that which the state law exempts. The bankruptcy court does not grant the exemption. It merely defines that upon which the law operates to exempt. The right is derived from the statute, and, as to the property found to be in fact exempt, the bankruptcy court has jurisdiction and the jurisdiction only to sever it from the estate; the title all the while remaining in the bankrupt. We have so held in Re Friedrich, 40 C. C. A. 378, 100 Fed. 284, and are therein in accord with Steele v. Buel, supra, and In re Wells (D. C.) 105 Fed. 762. Such was also the holding of the courts under the bankruptcy law of 1867. Rix v. Bank, 2 Dill, 367, 20 Fed. Cas. 846; In re Dillard, 2 Hughes, 190, 7 Fed. Gas. 703; In re Badway, 3 Hughes, 609, 20 Fed. Cas. 154; In re Bass, 3 Woods, 382, 2 Fed. Cas. 1004; Cox v. Wilder, 2 Dill. 45, 48, 6 Fed. Cas. 684; In re Hester (D. C.) 12 Fed. Cas. 68; In re Hunt (D. C.) 12 Fed. Cas. 902,
“In other words, it is made as clear as anything can he that such exempted property constitutes no part of the estate in bankruptcy. The agreement oí the bankrupt in any particular ease to waive the right to the exemption makes no difference. He may owe other 'debts in regard to which no such agreement has been made, but whether so or not it is not for tlio bankrupt court to inquire. The exemption is created by the state law, and the assignee acquires uo title to the exempt property. If the creditor has a claim against it, he may pursue that claim in a court which has jurisdiction over the property, which the bankrupt court has not. Nor does it make any difference that the homestead was not ascertained or set out in. severalty until after the proceedings in bankruptcy were commenced, or until after the conveyance to the assignee was executed. Whenever properly claimed and designated, the exemption protects it; and the exemption created by the bankrupt act relates back to the conveyance and limits its operation. Though uot desig-' uated when the conveyance was executed, it was capable of being designated; and on the principle that ‘id eertum ost quod certum reddi potest’ it is as much entitled to the benefit of the exemption as if it had been designated and set apart before the bankruptcy occurred.”
The former bankruptcy act ex industria staled'with particularity that the exemption of the homestead from the operatiou of the con-, veyauce required to be made by the bankrupt to the assignee should operate as a limitation upon the conveyance, and that in no case should Hie excepted property pass to the assignee or the title of the bankrupt be impaired or affected. The limitation there is no more certain and precise or more potential than the limitation of the present law, “except in so far as it is to property which is exempt.”
The majority opinion suggests certain questions which It is assumed answer themselves. A reference to them may not be unprofitable. It asks, where, after adjudication and prior to the filing' of the claim to the exemption, is the title to the homestead? I answer; Clearly in the bankrupt, because by the bankruptcy act the title did no! pass. The title came to the bankrupt by purchase. Its exemption from pursuit by creditors is conferred by statute. The adjudication of the bankruptcy court sustaining the claim of exemption does not confer title. It has not to do with title. It had only to deal with the claim of exemption. A decree of court adjudging a man and woman to he man and wife does not perforin a marriage ceremony. It is further suggested that if in the interval between the adjudication and the filing of the claim of exemption the bankrupt should die intestate without widow or issue, so that the homestead under the statute would go according to the law of descent, but subject to the debts and liabilities of the deceased, if the title was in no sense in the trustee, he would be powerless to deal with the property, and, if he had disposed of it and with the proceeds discharged the debts of the ¿bankrupt, the sale could be set aside as invalid or void. I answer: Of course, and because the trustee never acquired and could not convey title to it. The majority opinion also inquires, if moneys exempt and moneys not exempt be mingled, in whom is the title to the exempt moneys? Clearly in him to whom they of right belong, not in him who may happen to obtain tortious or rightful possession of them. The mingling no more passes title than does the mingling of grain in a warehouse bin
The other suggested situations are likewise easily met and resolved. The plain answer is that the trustee has no right, because he has no title. The law limits his title to property which is not exempt. The title to the exempted property remains without change with him in whom the right is vested by the law. The majority opinion would seem to hold that the title to exempt property passes upon adjudication in bankruptcy sub modo to the trustee, reverting, it may be presumed, to the bankrupt when the exemptions are established by the court, and again passing to the trustee upon a subsequent abandonment of the homestead, or else that the title to the homestead passes to the trustee upon adjudication and there abides. It is not clear which result is intended. If the former reading be correct, the logic of the opinion is that the title automatically shifts from one person to another ipso facto upon the happening of events. If the latter reading be correct, then the title to the property abides with the trustee, and all that remains to the debtor is the right of occupancy during his life. The trustee could convey that title, the purchaser becoming the owner with the right of possession upon the termination of the homestead right. But what, then, becomes of the provisions of the law that one’s homestead shall descend to one’s widow and issue, discharged of any claim of creditors? What, then, becomes of the right of the debtor to sell or mortgage, with the consent of his wife, the homestead premises, and to hold the proceeds for reinvestment in another home and beyond the pursuit of his creditors? The beneficent policy of the state would thereby be thwarted. Every debtor, whether honest or dishonest, by mere adjudication in bankruptcy would lose title to and control of his homestead; there remaining in him only the right of occupancy. This untoward result comes from an attempt to construe that which needs no construction, — an effort through much subtlety of reasoning to abort the plain language of the statute. The act says the title to exempt property shall not pass' to the trastee. The majority opinion says that it does, and that it passes and repasses ad infinitum, shifting with events. With all respect, the majority opinion, to my thinking, indulges a game of judicial battledoor and shuttlecock, interesting, indeed, as an example of mental gymnastics, but without the sanction of reason or the warrant of law. In the course of the discussion the majority opinion suggests, interrogatively, that the bankrupt’s exempt property may be held by the court to compel restoration of money fraudulently withheld by him from his creditors, and states that the question ought to answer itself. It should; but a correct answer,’I fear, would fail to meet the views of my brethren. It is novel doctrine that property exempt by law from pursuit by creditors, that the debtor and his family may have a roof to shelter them, may be taken from them because the debtor has defrauded his creditors. For the wrong done by him, the law gives to creditors appropriate remedy, civil and criminal. It does not subject the homestead to the payment of debts fraudulently con
Assuming, however, that the majority ojfimon is correct in supposing that the title to the homestead passes sub modo to the trustee until the claim for its exemption has been determined by the bankruptcy court, and then reverts to the bankrupt, the decree we are ask<»d to review is in my judgment erroneous. The court had determined, allowed, and declared the homestead. That order, as I think, was final, and, upon the assumption in the majority opinion, caused the title thereto to revert to the bankrupt. The decrecí here under review' in effect, although not in terms, nullifies the former decree because of the abandonment of the homestead by the bankrupt six months after the adjudication. In my opinion the bankruptcy court was without jurisdiction so to determine. The general purpose of fhe bankruptcy atd is that the bankrupt, surrendering his estate not exempt, should be discharged from his debts then existing and should retain the property exempted and allowed to him by the law of the state of his domicile. The creditors are to have all of the estate not exempt, and must surrender all claims against the bankrupt if he shall receive his discharge. The title to the property thus reserved for the benefit of creditors is vested in the trustees as of the date he was adjudicated a bankrupt. That date is the “dead line,” separating the pastnand the future. All that the bankrupt had on that date, except property exempt, goes to his creditors. All after-acquired properly goes to the bankrupt, and with that the trustee has nothing to do. That date is the line of delimitation. The bankruptcy court has to do with the estate which through the adjudication comes to the trustee for the creditors, and with no other.' The trustee can in no event pursue the after-acquired property of the bankrupt; .but, failing a discharge, the creditor may pursue it in an appropriate forum, but not in the bankruptcy court. In case of discharge the creditor cannot pursue, because the debt is discharged. Üo here, if by reason of abandonment the homestead has become subject to debts, the creditor, failing a discharge of the bankrupt, may pursue that homestead in an appropriate forum, not in the bankruptcy court; but, a discharge being granted, he is precluded from such pursuit because the debt is canceled. At the time of this adjudication and for months thereafter the premises in question constituted the homestead of the bankrupt and his family. Its subsequent abandonment could give no title to the trustee, not only because the law restricted title to property which at the time of adjudication was not exempt, but also because, under the theory of the majority opinion, the title was revested in the bankrupt by the decree of February 8, 1900, and the court was without jurisdiction to review that decree for matters occurring subsequently to the adjudication. It is not doubted that before the act, upon abandonment of the homestead, creditors could pursue it and subject it to the pay
I am constrained, with deference, to dissent from the judgment of the court.