Olmsted-Stevenson Co. v. Miller

On the Sth day of February, 1914, the respondent, Miller, filed his voluntary petition in bankruptcy in the court below, accompanied by the usual schedules of his debts, assets, and property. At the time of filing the petition the bankrupt was in possession of a homestead held by him under the laws of the United States, upon which final proof had not been made. A crop of wheat growing on this homestead was not included in the schedules filed. An order of adjudication followed the filing of the voluntary petition, and this in turn was followed by an order of discharge some two months later. On the 28th day of October, 1914, the petitioner, Olm *70 sted-Stevenson Company, a creditor of the bankrupt, filed a petition with the referee in bankruptcy, setting forth the failure of the bankrupt to include the growing crop in his schedule, and praying that the case might be reopened and the bankrupt required to file a supplemental schedule containing the omitted property. An order to show cause was made on the filing of this petition, and upon a hearing before the referee an order was made granting the prayer of the petition and requiring the bankrupt to- file a supplemental schedule. The…

(dissenting). Section 6 of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 548 [Comp. St. 1913, § 9590]) provides that the act shall not affect the allowance to bankrupts of the exemptions prescribed by the state laws in force at the *73 time of filing the petition; and section 70a (section 9654) provides that the trustee of the bankrupt’s estate shall be vested by operation of law with the title of the bankrupt as of the date when he was adjudged a bankrupt, “except in so far as it is to property which is exempt,” to all property which prior to filing the petition “he could have by any means transferred,” etc. The property here involved coukl have been transferred, for it is settled by the statutes and decisions of Montana that the owner may moi'tgage a growing crop. Brande v. Babcock Hardware Co., 35 Mont. 256 , 88 Pac. 949 , 119 Am. St. Rep. 858 . And being transferable under the laws of the state of Montana, it passed to the trustee, unless it was property which was exempt.

It is not contended that it was exempt under the laws of Montana, but it is said that it is exempt for the reason that it was a crop produced upon land which the bankrupt held as a homestead entry…