225 F. 323 | M.D. Ala. | 1915
This is a petition to review the order of the referee, overruling exceptions to the report of the trustee setting aside to the bankrupt his exemptions, and allowing to the bankrupt liis exemptions as claimed by and set aside to him.
The objecting creditors contend that the bankrupt disentitled himself to his exemptions (1) by making a false financial statement to the mercantile agencies, (2) by giving waive notes in excess of the value of his exempt property and so preferring the note holders, (3) by failing to claim his exemptions in the probate court, as provided by section 4168 of the Alabama Civil Code, and (4) by failing to itemize the articles claimed as exempt in his, claim filed in the bankrupt court.
“A bankrupt, is not deprived of Ms right to exemptions under the exemption statute of Georgia because of a fraudulent transfer of real estate made more than four months prior to his bankruptcy, nor because of false statements in writing made to obtain credit'; and fraudulent concealment of assets, if relied on to defeat such right, must be proved with reasonable certainty.”
In the case of In re Denson, 195 Fed. 857, 858, the District Court for the Northern District of Alabama said:
“No property theretofore fraudulently transferred or parted with by the bankrupt in any way to prevent its application to the. payment of his debts could be treated as part of Ms exempt property. Nor could Ms exemption be denied as a punishment for any conduct on the bankrupt’s part, however reprehensible it might be as to his creditors. This is the effect of the Alabama decisions.”
For these reasons the first ground of objection is untenable.
“A bankrupt may claim Ms exemptions allowed by the laws of Georgia from the proceeds of a judgment which he assigned to a trustee for the benefit of creditors, although such assignment constituted a preference under the bankruptcy act, where the assignee never made any attempt to obtain the money or any claim thereto, but after the adjudication in bankruptcy it was paid over to the trustee, by direction of the court, by the bankrupt’s attorney who had collected the same.”
In the case of Goodman v. Curtis, 174 Fed. 644, 98 C. C. A. 398, the Circuit Court of Appeals for the Fifth Circuit held that:
“The fact that a bankrupt has given notes in which he waived his right to exemptions does not give the bankruptcy court jurisdiction to administer Ms exempt property, nor affect Ms right to have the same set apart to Mm.”
The’ nonwaiver creditors having no interest in exempt property of the bankrupt are not injured by any disposition he may see fit to make of it, even though such disposition-work a preference or be made with intent to hide it from creditors. If this be true, it must
'The petition for review is denied, the order of the referee allowing the bankrupt’s exemptions is confirmed, and the petitioner is taxed with the costs of the review. .