Gray v. Gudger

260 F. 931, 171 C.C.A. 573, 1919 U.S. App. LEXIS 2139

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 10, 1919
• Docket: No. 3369
• Status: Published

Opinion

FOSTER, District Judge.

In this case it appears from the allegations of a petition of respondents to the District Court that R. T. Gray, bankrupt, failed to schedule a life estate in a certain lot of land in Murray county, Ga., but it was nevertheless advertised and sold by the trustee at public auction to respondents. Not obtaining possession, in due course respondents filed a petition in the District Court alleging the purchase by them of the said life estate; that they found the bankrupt, R. T. Gray in possession; that he refused to surrender it; that in proceedings instituted to force him to do so he set up in his answer that some years prior to his adjudication as a bankrupt he had sold his life estate to his son, W. G. Gray; that he had made no deed to him, but that another son was in possession of the said life estate as a tenant of W. G. Gray; that said W. G. Gray was a party to the bankruptcy proceedings as attorney for his father, the bankrupt; that he was present at the sale of the life estate, and bid on it, and several times raised the bid made by respondents; that .there was collusion between W. G. Gray and R. T. Gray.

Respondents prayed that W. G. Gray be made a party to the suit, which was granted. Issue was joined on the petition, and after due proceedings an order was finally entered by Judge Newman placing the respondents, R. M. Gudger and J. L. Robinson, in possession of the lif« estate of the bankrupt. It is those orders which are sought to be reviewed in this proceeding.

The record does not contain a summary of the evidence or a statement of facts. Respondents have filed a motion to dismiss the petition on the ground of diminution of the record. The motion is not entirely without merit, but in the view we take of the case it is unnecessary to pass on it.

[1] In the absence of the evidence we must assume that it tended to support the allegations of the petition of respondents. The only questions, therefore, presented by the petition to review, are those relating to the jurisdiction and authority of the District Court to make the orders complained of.

[2, 3] Undoubtedly the District Court had jurisdiction to sell the life estate of the bankrupt, whether it was surrendered on the schedule or not. The court also had jurisdiction to determine in a summary manner whether or not the alleged sale of the bankrupt to his son was a real sale, ’ made in good faith, or was merely a colorable claim. Mueller v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 46 L. Ed. 405. On the facts alleged by respondents, the order of the District Court was correct.

The petition to superintend and revise is denied.