57 Vt. 293 | Vt. | 1884
The opinion of the court was delivered by
It is here sought to hold the trustee for the
The defendant could not make such a provision for himself by a transfer of all his property that would avail against the plaintiff’s claim then existing, if this provision was the only consideration. The trustee having sold the non-exempt real estate for $600, has a fund that would be trusteeable unless the defendant has been paid for that part. Under the provisions of our statute, section 7070 of the Revised Laws, the trustee is not chargeable for the exempt portion of the property conveyed to him. • Neither is he chargeable for the proceeds of the non-exempt part sold by him unless the finding of the commissioner is such as to compel the court to apply the debt due from the defendant to the trustee, and which the latter relinquished, proportionately between the parts exempt and non-exempt, as was done with a payment in White v. Capron & Tr. 52 Vt. 634, in which the commissioner found the payment was general. We think this report does not compel such application.
We do not think the fact that Kelley went to New Hampshire to live after this transaction should vary the rule applicable to the case; or that we should presume on that account that he had other exempt property in New Hampshire of the same kind as that conveyed by him to Roy. The report leaves but little ground for such inference or presumption, if indeed ever proper.
The real estate conveyed by Kelley to Roy consisted of two pieces, being all he had, one containing one and one half acres and having the house thereon occupied by Kelley as his home, and of the value of $450; and the other containing fifty acres worth $050, and being from thirty to forty rods distant from the first mentioned piece. The plaintiff claims that the fifty acre piece was no part of the homestead exempt from attachment and execution, because not adjoining the acre and half piece where the buildings stood.
It was to all intents kept and occupied as á part of the homestead. It was land “used in connection” with the “dwelling house” and “out-buildings.” We think that under the homestead act, as it now is and has been since the compilation of 1803, the exemption, to the extent of $500, may apply in part to a separate parcel from the lot where
The exemption of the homestead, therefore, included not only the one and one half acre piece where the buildings stood, but $50 in value in the other piece. These views render it unnecessary to notice the other points argued.
Judgment affirmed.