35 Mo. App. 148 | Mo. Ct. App. | 1889
delivered the opinion of the court.
In 1882 the .plaintiffs recovered a judgment against the defendant, Edward M. .Kirtland, in the sum of $10,423.31. On the eighteenth day of July, 1887, the plaintiffs commenced this suit in equity to subject to the satisfaction of their judgment the interest of the said defendant in the rents, issues and profits of certain land devised by the mother of the said defendant to certain other of the defendants as trustees for his use. One week after the filing of the petition, the defendant, Edward M. Kirtland, in the city of Chicago, Illinois, executed an instrument in writing whereby, in consideration of love and affection, he assigned to his two minor children, Maude H. and Helen D. Kirtland, his right to the use, benefit and income from the estate devised to his trustees by the said will to the end that they might enjoy the same as fully as he could have done. He filed a separate answer to the petition in this case, setting up that he was at the date of the execution of the assignment referred to a resident of this state and the head of a family, and claimed that three hundred dollars of the interest so assigned is exempt from the demands of creditors. To this answer the plaintiffs filed a reply denying that this defendant was a resident of the state either at the date of the assignment or at the time when the reply was filed and denying his right to the exemption. His two children, Maude H. and Helen D. Kirtland, in a separate answer, set up the assignment to them, and pleaded their father’s right of exemption in
A reply to this separate answer also put in issue the .allegation of Edward M. Kirtland being a resident of the state and entitled to the exemption ; and denying that these defendants are entitled to the benefit of any exemption rights in the premises.
The only evidence adduced by the defendants in support of so much of their respective answers as is above set out was the deposition of the defendant, Edward M. Kirtland, taken at Chicago, on a date not disclosed, the caption to the deposition being omitted from the record. From this deposition it appeared that Mr. Kirtland had then been living in the city of Chicago for a year, during which time he had been employed as engineer in a manufacturing establishment; that his previous residence and place of business had been at St. Louis, in this state ; that he had a family consisting of a wife and the two children named ; that about a year before he left St. Louis he had broken up housekeeping,
The only error assigned on this appeal is the allow;ance of this right of exemption in favor of the children.
The question is thrown into a clearer light by the decision of this court in Alt v. Lafayette Bank, 9 Mo. App. 91. That case affords a distinct authority for the decision of the case before us against the claim of exemption set up by the defendants. It had previously been held by this court in Kulage v. Schueler, 7 Mo. App. 250, that there can be no fraudulent conveyance of property which has already acquired the status of being exempt from execution. In the latter case of Alt v. Lafayette Bank, supra, it was held that where property has not acquired the status of exempt property at the time when it is conveyed in fraud of creditors, a right of exemption in respect of it cannot afterwards be claimed. In other words, the court held that, to give property the legal status of exempt property, the debtor must set up his exemption claim, and in the absence of any such claim, if the property is levied upon as the property of the debtor in the hands of a third person to whom it has been conveyed in fraud of creditors, the fact that the debtor might, at the date of- the conveyance, have claimed it as exempt will not make the conveyance, good as against the judgment creditor. In that case, as in the case now under consideration, the goods were not of a kind such as is exempt from execution by name under the provisions of section 2343, Revised Statutes ; but they consisted of a stock of groceries employed in trade, out of which an exemption might have been claimed, as here, under the provisions of section 2346. There, the fraudulent conveyance was by the husband to the wife ; here it is by the father to the children. The property having been levied on as the property of the husband, and having been claimed
In the present case, it was earnestly argued that, until the time came to file his answer, the debtor had been afforded no opportunity of setting up his claim of exemption — that, in the nature of things, he asserted the claim at the earliest possible time. We apprehend that this view is not tenable. A creditor’s bill, filed for the purpose of subjecting to the execution of a judgment creditor a fund which is not leviable under an ordinary writ of fieri facias may indeed be regarded as a modified form of execution, as was reasoned by this court in the case of Ryan v. Lee, 14 Mo. App. 599. The filing of such a bill may no doubt be regarded as an equitable levy upon the fund sought to.be subjected. The debtor may, without doubt, as this court held in that case, set up in his answer his right of exemption to the extent of three hundred dollars of the fund given him by section. 2346, Revised Statutes, provided he has not divested himself of this right by an assignment of the fund prior to the filing of his answer, as in the case before us. If it is asked in what manner the debtor in the present case could have claimed, under section 2346, Revised Statutes, his exemption out of the fund in controversy, transferring at the same time his interest to the extent of the exemption to his children, we answer
The argument, that the cases in which these holdings were made were cases in which the property was seized by execution or attachment, and that in this case the debtor has in his answer claimed his exemption at the earliest period, and in the only manner in which it was possible to claim it, is met by the answer that the debtor has not claimed it for himself at all. We have above recited the language of his answer upon this point. He sets up that he is a resident of this state and the head of a family and that three hundred dollars of said assigned interest was, and is, exempt from the claims of his creditors; but he does not ask that, in case the assignment is avoided, the sum of three hundred dollars be set apart to him. Nor is it perceived how he could ask it in the face of his assignment. He might have retained his right of exemption in the fund by assigning to his children all of it in excess of three hundred dollars, reserving that amount to himself in virtue of his rights under the statute. But he did not do this; he elected to give it all away to his children, and having given it away, it is
There is another ground upon which we think the decree of the circuit court cannot be upheld, in so far as it prefers these children before the plaintiffs to the extent of three hundred dollars. The allegation, in the
The judgment of the circuit court will be reversed and the cause remanded, with directions to discharge so much of the decree as awards any portion of the fund to the children, and otherwise to reinstate the decree as previously entered. It is so ordered.