In re Plants

NETERER, District Judge.

A homestead may be selected from lands, with improvements, not exceeding the sum of $2,000 must bo used as a home for the claimants (section 552, Rem. C. S. Wash.), and be selected by executing and acknowledging as a grant of real property and declaring and filing the same for record (section 558, supra). The declaration shall contain a statement by the head of the family, showing residence thereon and a description of the premises, and estimated cash value, and claim, the same as a homestead (section 559, supra,), and bo rerecorded in the office of the county auditor of the county in which the land is situated, (section 560, supra).

Section 70a of the Bankruptcy Act (Comp. St. § 9654) provides: “(a) The Trustee of the estate of a bankrupt, upon appointment and qualification * * * shall * * * be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except insofar as it is to property which is exempt, to all ■ * * * (5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him.”

The Supreme Court, in Everett v. Judson, 228 U. S. 474, at page 479, 33 S. Ct. 568, 569 (57 L. Ed. 927, 46 L. R. A. [N. S.] 154), said: “We think that the purpose of the law was to fix the line of cleavage with reference to the condition of the bankrupt estate as of the time at which the petition was filed, and that the property which vests in the trustee at the time of adjudication is that which the bankrupt owned at the time of the filing of the petition.”

The Supreme Court, in White v. Stump, 266 U. S. 310, at page 313, 45 S. Ct. 103, 104 (69 L. Ed. 301, 5 Am. Bankr. Rep. 1), said: “when the law speaks of property which is exfempt and of rights to exemptions it of course refers to some point of time. In our opinion this point of time is the one as of which the general estate passes out of the bankrupt’s control, and with respect to which the status and rights of the bankrupt, the creditors, and the trustee in other particulars are fixed. * * * The bankrupt’s right to control and dispose of the estate terminates as of that time, save only as to ‘property which is exempt.’ Section 70a. The exception, as its words and the context show, is not of property which would or might be exempt, if some condition not performed were performed, but of property to which there is under the state law a present right of exemption — one which withdraws the property from levy and sale under judicial process.”

In this ease the District Court of Idaho and the Circuit Court of Appeals followed Brandt v. Mayhew, 33 Am. Bankr. Rep. 845, 218 F. 422, 134 C. C. A. 210. The homestead laws of Idaho are distinguished from the laws of Washington in this: That under the laws of Idaho the homestead'must be selected prior to the levy of execution, while under the Washington statutes it may be selected at any time before sale. Section 529, Remington’s C. S. of Wash. The Supreme Court, however, definitely fixed the date of filing- the petition as the limit of selection.

Homestead laws are liberally construed. In re Cook (D. C.) 219 F. 979. Hills v. Joseph, 229 F. 865, 144 C. C. A. 147. E. P. Lemagie v. Acme Stamp Works, 98 Wash. 34, 167 P. 60. The claim for homestead exemption recorded in the auditor’s office, with the deed of assignment for benefit of creditors on May 8, 1925, substantially complies with every provision of statute; the only distinction being, perhaps, the indexing in the auditor’s office, and instead of “declaration for homestead” is “homestead exemption,” and these cannot be said to be prejudicial.

. The order of the referee is affirmed.