105 F. 425 | E.D. Tenn. | 1900
The sole question certified to me by the referee in this case, stated in his own language, is as follows: “Whether or not the petitioner is entitled to a homestead in the real estate set out in his amended schedule, and to the crops growing thereon at the time of •filing his petition.” Upon the evidence disclosed by the record, there can be no doubt that the conveyance made by the bankrupt of the land in which homestead is now claimed was fraudulent; certainly so in law, whatever might he considered true as a matter of fact. The conveyance was entirely voluniary. In this situation of affairs, when the bankrupt was duly adjudged such bankrupt, the right to set aside this conveyance and to recover this property and subject the same to the debts of the bankrupt’s creditors became, by operation of law, vested in the trustee for the benefit of such creditors, and the subsequent attempted conveyance by the fraudulent vendee back to the vendor had no effect on this right; and under the decisions of the supreme court of this state construing the homestead law the bankrupt, under such circumstances, is not, as against creditors, entitled to homestead. It is accordingly so adjudged, confirming in that respect the view of the referee. The question debated whether or not the wife of the bankrupt has, by reason of joining her husband in the fraudulent conveyance, deprived herself of homestead, is a question not before this court, as the wife is not a party to the suit by any mode of service of process, actual or constructive, and that question is accordingly left undecided. If the wife of the bankrupt should be duly advised that she may assert her homestead right, notwithstanding the conveyance in which she joined, a remedy in the state court is open to her in that behalf according to the case just decided bv the supreme court of the United States of Bardes v. Bank, 2 Nat. Bankr. N. 725, 20 Sup. Ct. 1000, 44 L.Ed. 1175. This court would he without jurisdiction of a suit by the wife claiming homestead against the trustee, and such a suit could only be prosecuted in the state court, unless, by consent, it should be prosecuted in this court. Judgment will be entered accordingly.