dissenting: I am unable to agree that this case on its facts does not come within the meaning of section 44 (d) of the Revenue Act of 1928. By the provisions of that section there are only two conditions prerequisite to its application in cases such as that before us. The obligations dealt with must be installment obligations and they must have been satisfied at other than their face value. In my opinion the parties have stipulated that these conditions have been met.
Neither party questions the fact that the obligations of the purchasers in the instant case were installment obligations, and the majority opinion finds as a fact that they were. The question, then, is whether these obligations were “ satisfied at other than ” their “ face value.” On this point the stipulation reads as follows:
4. In 1929 the purchasers defaulted In their obligations and negotiations were entered into which resulted in agreements executed in 1929 whereby the petitioner released the purchasers from further obligation for the unpaid installments of the purchase price, and', in addition, paid them $50.00 in cash for each lot, being $450 in all; and the purchasers surrendered their equity in the property to the petitioner and returned possession thereof to the petitioner.
5. The aggregate value of the said nine lots so repossessed by the petitioner in 1929 was, at the time of said repossession, less than $27,122.00.
In my judgment these stipulated facts clearly show satisfaction of the purchasers’ obligations by an executed agreement of accord. Boffinger v. Tuyes, 120 U. S. 198; Missouri-American Electric Co. v. Hamilton Brown Shoe Co., 165 Fed. 283; Buford v. Inge Construction Co., 279 S. W. (Tex.) 513; Davis v. Davis, 229 Pac. (Okla.) 479; Chapman v. Adams, 219 S. W. (Mo.) 132; Glucksman v. Board of Education of City of New York, 164 N. Y. S. 351. The purchasers defaulted on obligations to pay the further sum of $39,-375 and a settlement was negotiated, the net result of which was that the purchasers satisfied their obligations and received $450 in cash, in return for possession of the property and surrender of their equity therein. By the stipulation it was agreed that the entire value of the property at that time was less than $27,122, thereby showing that the obligations were satisfied at other than their face value and definitely bringing this case within the provisions of section 44 (d).
The majority opinion, it seems to me, loses itself in an effort to distinguish between a sale of property where title passes and a mortgage is given as security for the purchasers’ obligations and a sale where bare legal title is retained as such security. Section 44 (d) of the statute makes no such distinction, but applies to installment obligations arising from sales of either type and, according to my view, contains nothing which would justify the distinction which the majority opinion attempts to draw.
For the reasons stated I respectfully dissent.
Smith, Trammell, ArtjNdell, McMahoN, and Leech agree with this dissent.