Cole

This appeal arises out of proceedings for agricultural composition - and extension under § 75 of the Bankruptcy Act, 11 U. S.C.A. § 203. Appellant farmer-debtors petitioned for composition under that section, and their composition offer was rejected. They then amended their petition, asking that they be adjudged bankrupt, and that their property be appraised and they be allowed to retain possession thereof for three years, all in accordance with § 75, sub. s, of the Bankruptcy Act, 11 U.S.C.A. § 203 , sub. s; 49 Stat. 943 -945.

The debtors were thereupon adjudged bankrupt and an order of reference was made to John McKay as Conciliation Commissioner. The Conciliation Commissioner appointed appraisers on March 12, 1940, and their appraisal, made on the same day, valued the real property at $1,000 and the personal property at $853.50.

On March 13, 1940, the Commissioner made an order staying for three years all proceedings against the bankrupts, setting aside to them the real property here involved as exempt, giving them possession thereof under the supervision of the court, and fixing the annual rental at $115, the first payment to be made within one year thereafter.

On July 8,…

(dissenting).

As said in the main opinion, the trial court did not fix the rental or determine the conditions under which the debtors might remain in possession for the statutory period. I think the court was obliged to do that and thus to afford the debtors the opportunity of accepting the conditions imposed. The Act is plain in this respect; and there was here no clear waiver of the statutory requirement. At best there appears to have been an advance insistence on the part of the debtors that a rental sufficient only to pay taxes and water charges was all that the property would bear, or that a greater rental would be impossible to meet. It should be remembered that expressions of this sort were made in the course of the hearing in which the debtors were endeavoring to sustain the appraisal of the conciliation commissioner. The debtors might well feel differently about the matter after the court had made its decision and definitely fixed the terms with which they would be obliged to comply.

For this reason, it seems to me, the order below should be reversed with directions to fix the terms of continued occupancy.