40 Ind. App. 465 | Ind. Ct. App. | 1907
On September 3, 1906, appellant filed his verified petition in the Jay Circuit Court, showing that on July 9, 1906, he made a general assignment of all of his property to Millard Nixon for the benefit of his creditors, under the law for general assignments (§§2899, 2900 Burns 1901, Acts 1891, p. 312, §2663 R. S. 1881), and such indenture was duly recorded in the proper county recorder’s office on that day; that at the time of the execution of such indenture of assignment he was an unmarried man, and not a householder of the State of Indiana; that on July 14, 1906, he married, and from that day continuously he has been a bona fide householder of this State; that on July 16, 1906, said Nixon refused to accept said trust, and on the same day appellee was, by the Jay Circuit Court, appointed trustee in place of Nixon; that on July 19, 1906, appellee duly qualified and took possession of the property, and entered upon the duties of his said trust, and proceeded to have the property so assigned appraised; that while appellee and the appraisers were engaged in appraising said property, appellant demanded of appellee, and selected and pointed out to appellee and said appraisers, goods and property appraised at $550, which, together with $50 in money, retained by him at the time of making the assignment, amounted to $600, and requested that the same be set off to him as exempt from sale, on the ground that he was then a bona fide householder. His demand was refused. To this petition a demurrer for want of facts was filed and sustained, and judgment rendered against appellant. The ruling of the court in sustaining appellee’s demurrer to the petition is the only error here assigned.
In O’Neil v. Beck, supra, the question of the debtor’s right to have set off to him, in a voluntary assignment proceeding, property amounting in value to $600, instead of $300, was the only one for decision. In passing on that question the court observes that a debtor who voluntarily surrenders his property under the assignment law is entitled to the same favor regarding the amount of property exempt as he would have were it to be seized and sold on execution against him. In Robinson v. Hughes, supra, the question before the court was the right of a resident householder to have certain property set off to him as exempt from execution and sale, he being, at the time of the rendition of judgment, and at the time of issuing the execution, levy, and advertisement for sale, a single man and not a householder. Held, the exemption should have been allowed. In the course of the opinion it is said: “Our statute, in terms, secures to every bona fide resident householder of the State $600 worth of property as exempt from execution, and our opinion is, that the appellee in
Judgment affirmed.