75 N.W. 789 | N.D. | 1898
The sole question here involved relates to the right of a party who has been declared an insolvent on his own petition to claim his exemptions as against a. creditor who claims that his debt was incurred under false pretenses and by the use of fals.e representations on the part of such insolvent. The
We shall not discuss the point made by respondent that, under section 208 of our constitution, no head of a family can be deprived of the benefits of the exemption laws, as we think the ruling of the court was clearly right upon other grounds. Our insolvency law provides (sections 6037, Revised Codes) as follows: “The debtor shall be allowed such exemptions as are provided for by law and shall be permitted to use and occupy his homestead, household furniture, and absolute exemptions .until his homestead and exemptions shall have been selected in the manner hereinafter prescribed.” Section 6046, Revised Codes, provides for the selection of the homestead and exemptions up to the full amount allowed by law, at the value determined by the appraisement; and provides, further, that, when such exemptions have been selected, an inventory of the same shall be presented to the court, and, if satisfied that the debtor is entitled thereto, the court shall make an order setting the same apart. Thereafter the assignee has nothing to do with such exempt property. There are no exceptions to the rule whatever, so far- as the insolvent law is concerned. There are no claims mentioned against which a debtor is not entitled to his full exemptions. But, under the chapter treating of executions in civil actions, it is declared, by section 5526, Revised Codes: “No personal property except absolute exemptions shall be exempt from execution or attachment in an action for * * * a debt incurred for property obtained under false pretenses.” The creditor here urges that, inasmuch as the debtor could have claimed only absolute exemptions as against this claim if it was being enforced by attachment or execution, it is not the policy of the law to allow him any greater rights under the insolvency law. This conclusion does not necessarily follow. It is now almost universally conceded that statutes granting exemptions to heads of families are highly beneficial in their character, and should have a liberal construction, in furtherance of the accomplishment of
If this creditor has any claim to special favor at the hands of the assignee, it must be because he is a preferred creditor. But preferred creditors are specially classified by section 6070, and this claim falls within neither class. All other claims must, under the statute, be treated in the same manner by the assignee. All funds paid out by him must be paid pro rata on such claims. He has no power to sell property for the benefit of one unpreferred creditor. It would, we think, be a matter unheard of in practice, if a court should make an order setting apart property which should be exempt as to some creditors and not exempt as to others. Such a course would be repugnant to the main policy of insolvency and bankruptcy laws. It is the policy of such laws to force all creditors to share alike in that proceeding, unless for special reasons the law places them in a preferred class. Whatever property vests in the assignee by virtue of the insolvency proceedings vests in him for the benefit of all creditors. No property can vest in him for the exclusive benefit of one creditor. Such a claim would be repugnant to every section of the act. By setting apart to the insolvent his exemptions, this creditor is deprived of no rights. Section 6086 declares that no debt created by the fraud of the debtor shall be discharged by the insolvency proceedings. This creditor can share in such proceedings, he can receive his proper dividends, and then if his claim rests upon the debtor’s fraud, he can sue for the balance, and exhaust the debtor’s exemptions. In that proceeding he can contest the debtor’s claim for exemptions. We are clear that such was the legislative purpose. It is true the statute provides that, when the inventory of exemptions is presented to the court,
Affirmed.
