dissent">TurNer,

dissenting: As I read the opinion of the majority in this proceeding there is no question that the property disposed of was a capital asset and the holding rests entirely upon the conclusion that the disposition of the asset was not by way of a sale or exchange within the meaning of section 111 of the Revenue Act of 1934. That section of the statute in so many words deals with “the gain or loss recognized upon the sale or exchange of a capital asset.” To say that the loss in the instant case was not sustained “upon the sale” of the petitioner’s property, admittedly a capital asset, is in my opinion to ignore the plain facts and the fundamentals of mortgages and foreclosures. Furthermore, even though it may be said that there was no sale of anything belonging to petitioners in such cases as Commonwealth, Inc., 36 B. T. A. 850, and Sol Greisler, 37 B. T. A. 542, which cases were not reviewed by the Board, and in respect of which I express no opinion here, the factual situation on which those decisions turn is not present in this case. In the instant case the creditor apparently instituted suit and obtained judgment upon the personal obligations of the petitioners and, by reason of authority previously given by the petitioner in the trust instrument, procured an order authorizing the sale of the capital assets here involved, the petitioner’s property, and the application of the proceeds in satisfaction of the petitioner’s debt. According to the facts as I understand them, the trustee actually or at least constructively received a sum of money for the benefit of the petitioner upon such sale and the amount so received was applied toward satisfaction of the judgment against the petitioner. I am unable to find any basis for a conclusion that the loss was not sus-*910tamed “upon, the sale” of a capital asset belonging to the petitioner merely because the sale occurred in connection with foreclosure proceedings and was actually made by a trustee for the account of petitioner rather than by the petitioner himself.

For the reasons stated, I respectfully dissent.

Leech agrees with this dissent.

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