The opinion of the court was delivered by: SCHOONMAKER
On October 17, 1942, debtor filed a petition as a farmer for a composition or extension under Section 75 of the Bankruptcy Act, 11 U.S.C.A. § 203.
On January 20, 1943, the Conciliation Commissioner filed a report recommending that the petition be dismissed because debtor was not a farmer. On February 16, 1943, creditors of debtor moved for confirmation of this report; and on February 27, 1943, debtor filed exceptions thereto. The case was then heard on this motion and debtor's exceptions.
The present petition of debtor is the second petition he has filed under Section 75 of the Bankruptcy Act. The first petition was filed May 11, 1937, at No. 19890 in bankruptcy. In that case we filed an opinion on July 10, 1941, holding that debtor was not a farmer within the provisions of the Bankruptcy Act, and dismissed the petition. Whereupon, debtor appealed to the Circuit Court of Appeals, and on March 23, 1942, that court affirmed the order of dismissal. See In re McGrew, 3 Cir., 126 F.2d 676, certiorari denied by U.S. Supreme Court on October 12, 1942, McGrew v. Simmons, 317 U.S. 646, 63 S. Ct. 39, 87 L. Ed. .
The Commissioner was of the opinion that the dismissal in the case at No. 19890 Bankruptcy barred debtor's right to proceed again with a new petition under Section 75 of the Bankruptcy Act. But we conclude, in view of the opinion of the Supreme Court filed January 4, 1943, in Wragg v. Federal Land Bank, 317 U.S. 325, 63 S. Ct. 273, 87 L. Ed. , that debtor was not barred by the dismissal of the first petition from filing a new petition to secure whatever relief the act would then afford him with reference to such property as he then had.
We therefore have to decide whether or not the facts have so changed since the dismissal of the debtor's first petition that he can now be classified as a farmer within the meaning of the Bankruptcy Act.
Briefly summarized, the facts found by the Conciliation Commissioner are these:
About 1905, debtor laid out a tract of land in Bethel Township, Allegheny County, Pennsylvania, into two building lot plans known as Library Acres, Plans Nos. 1 and 2, containing eighty-seven lots. These plans were recorded in the Allegheny County Recorder's Office in Plan Book Vol. 21, page 173, and Plan Book Vol. 22, page 128.
The debtor has sold twenty full lots and three half scattered throughout these plans. Streets have been as shown on the plans, some of which have been taken over by Bethel Township.
Debtor lives in a house built on one of the lots of these plans. He is a registered civil engineer and practised his profession in 1942. He testified that he earned in that profession, in 1942 to the date of the hearing before the Conciliation Commissioner, some $420, though it developed on cross-examination that he had concealed the payment to him of $45 received from surveying work in 1942. From this fact and the fact of his evasive answers to questions propounded to him, the Conciliation Commissioner concluded that his testimony as to the amount of his earnings in his profession as an engineer must be rejected as not stating the full volume of these earnings.
In 1941, debtor did no farming of any sort on these two plans of lots, not even cutting the hay that grew thereon.
The debtor's activity with respect to these operations was confined to supervision of the work and marketing the crop of tomatoes and peppers.
Debtor's schedules disclose very little farming equipment. He has a broken and unusable tractor; a set of tractor plows; a disc harrow (now in possession of the man who plowed the land and who is holding it as security for amount debtor owes him for plowing); a rake; a roller; a ...