97 F. 486 | D.S.D. | 1899
The firm of Lentz & Odegard has been adjudged bankrupt. The referee having charge of the case, on the 9th day of November, 1899, made an order- allowing the trustee to set aside a'partnership exemption of $1,500, and also certain absolute exemptions from the partnership property. To the granting of this order the creditors excepted, and the questions as to whether said firm of Lentz & Odegard is entitled to any exemption from the firm property, and as to whether the members of said firm are entitled to individual exemptions out of said property, are before me for decision. Prior to 1890, the law of the state of South Da
^November 2, 188!), the state of South Dakota was admitted to the Union, with a constitution which went into effect on that day. Section 4 of article 21 of that constitution reads as follows: “The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced sale a homestead the value of which shall be limited and defined by law, to all heads of families and a reasonable amount of personal property, the kind and value of which to be fixed by general laws.” In 1890 the legislature, in pursuance to this declaration of the constitution, passed a law known as “Chapter 86, Sess. Laws 1890.” By this law, section 324, hereinbefore quoted, was amended to read as follows: “In addition to the property mentioned in the preceding section the debtor, if the head of a family, may, by himself or his agent or attorney, select from all other of his personal property not absolutely exempt goods, chattels, merchandise, money or other personal property, not to exceed in the aggregate seven hundred and fifty dollars in value; and if a single person, not the head of a family, property as aforesaid of the value of three hundred dollars,
There is another reason why the firm- of Lentz & Odegard .can claim no exemption as a firm, and that is the fact that, immediately upon the adjudication of the firm bankrupt, the firm was absolutely dissolved for every purpose; hence there is no firm to claim or receive firm exemptions, and there are no partners to consent that each have an individual exemption. This brings us to the only remaining question, and that is, can the individual partners composing the firm of Lentz & Odegard claim an individual exemption out of the partnership property? 'If the supreme court of the state had decided- this question, it would be my duty, as well as pleasure, to follow it. In the absence of such decision, the question must be decided upon principle and authority. The state law says the debtor may select from his property certain property which shall be exempt. The partnership property of an insolvent firm is not the property of either partner. It is a trust fund for the payment of the firm’s creditors, and the clear weight of authority is in support of the proposition that individual partners cannot claim an exemption from the partnership property of an insolvent firm against the protest of the firm’s creditors. There are a few authorities that have held that, if the partners all consent, then an individual partner can claim his individual exemption from the firm property; but in a bankruptcy proceeding there are no partners to consent after adjudication in bankruptcy, and such a holding violates the conceded law that the partnership property is a trust fund for creditors, and not for the partners of an insolvent partnership. In the