In 1942, debtor hired a nearby farmer to plow some of the lots on these plans, and with the aid of a number of school children whom he hired, planted, cultivated and harvested a crop of tomatoes and peppers on this land, from which he realized approximately $1.000. He hired a nearby farmer to sow a small part of this land with buckwheat, but failed to harvest any buckwheat because it was ruined by frost.
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 mowing machine and a road scraper (not usable in farming operations).
Debtor has no livestock, no barns or other buildings in which to house farming equipment, or any products of the soil. He resides in a house located on one of the lots in his lot plan.
On these facts the Conciliation Commissioner concluded that McGrew was not a farmer within the meaning of the Bankruptcy Act.
In our opinion this ruling was correct. McGrew's right to relief must be tested by Sec. 75, sub. r, of the Bankruptcy Act, 11 U.S.C.A. § 203, sub. r. See Benitez Sampayo v. Bank, 313 U.S. 270, 61 S. Ct. 953, 86 L. Ed. 1324. The term "farmer", as defined by this Act, includes "an individual who is primarily bona fide personally engaged in producing products of the soil."
The burden of proof rested upon debtor to show by the fair weight of testimony that he came within the purview of this statute. See In re Chaney, D.C., 39 F.Supp. 696, 700; McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135. That he has failed to do.
We cannot find that debtor comes within the purview of this Act, because we cannot regard his primary occupation as that of a farmer. His primary occupation was that of a civil engineer. His farming operations in 1942 were secondary.
The fact that in one year he had plowed and cultivated a small part of his lands, which had been laid out in town lots, would not bring him within the Act when he still continued to work at his profession as a civil engineer. We do not have the situation present in First National Bank & Trust Co. v. Beach, 301 U.S. 435, 439, 57 S. Ct. 801, 81 L. Ed. 1206, in which the Supreme Court held that Beach must be regarded either as a farmer or as a man of leisure. In the instant case, debtor is a civil engineer, which we regard as his primary occupation.
Our conclusion is that the debtor has not, by reason of his activities in 1942, brought himself within the classification of a farmer, as defined by the Bankruptcy Act; that his exceptions to the report of the Conciliation Commissioner must be overruled; that the report of the Conciliation Commissioner must be confirmed; and that the debtor's petition must be dismissed.
Orders may be submitted accordingly on notice to debtor's counsel.
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