152 Ga. 445 | Ga. | 1921
In this State it is settled that after a debtor has been adjudicated a bankrupt and property has been allowed him by the referee as an exemption in bankruptcy and the property has been delivered to Mm by the bankruptcy court, he is at liberty to sell and dispose of it; or he may apply to the State court and have the exempted property set apart as a homestead. Pincus v. Meinhard, 139 Ga. 365 (77 S. E. 83); Peppers v. Cauthen, 143 Ga. 229 (84 S. E. 477); Baltimore Bargain House v. Busby, 143 Ga. 734 (85 S. E. 875); Hardee v. Bank of Donalsonville, 144 Ga. 289 (86 S. E. 938); Tanner-Brice Co. v. Morris, 146 Ga. 126 (90 S. E. 855.) It has also been decided that “ Where an insolvent person files a voluntary petition in bankrupted', and prays that property be set apart to him as exempt under homestead laws of this State, and upon such petition is adjudged a bankrupt and a trustee in bankruptcy is appointed, who sets apart to the bankrupt property as prayed, and duly files his report thereof in the court of bankruptcy, to which no exception is filed, the bankrupt has an assignable interest in the property so set apart, and it is lawful for him to assign the property in good faith for application to pre-existing debts, although the assignment be made before expiration of the twenty days allowed under General Order No. 17 (Collier on Bankruptcy, 1067), within which to file exceptions.” Taylor Co. v. Williams, 139 Ga. 581 (77 S. E. 386). It has not been decided that the bankrupt has an assignable interest in the property claimed by him as
"We are therefore of the opinion that where an insolvent person files a voluntary petition in bankruptcy and prays that property be set apart to him as exempt under the constitution and homestead laws of this State, and upon such petition is adjudicated a bankrupt, the bankrupt has an assignable interest in the property claimed by him to be exempt, and it is lawful for him to assign the property in good faith in settlement of or as security for a pre-existing debt, although the assignment be made before the exemption is set apart by the trustee in bankruptcy. It must be remembered that under the Civil Code (1910), § 3230, “a debtor may prefer one creditor to another, and to that end he may bona fide give a lien by mortgage or other legal means, or he may sell in payment of the debt, or he may transfer choses in action as collateral security, the surplus in such cases not being reserved for his own benefit,” if such sale or transfer is not fraudulent as against creditors under the Civil Code (1910), § 3224.
It is true that the bankrupt might have withdrawn his claim to ' the property, and his right to have the property set apart as exempt might have been defeated in certain circumstances by his creditors; but we can not admit that the bankrupt’s interest in the property claimed by him as exempt under the constitution and laws of this State, prior to tile setting apart of the property by the bankruptcy court, is a bare contingency or possibility which can not be ¡.be subject of a sale under the Civil Code (1910), § 4117. The title of the bankrupt in the property is more nearly analogous to a defeasible title. He may by his own act divest himself of title; or his right to have the property set apart by the bankruptcy court may, in certain circumstances, be defeated. As we have seen, however, the bankrupt prayed that certain property be set apart to him as exempt, and the property was set apart to the bankrupt as prayed. In these circumstances a court of equity will give effect to the assignments, unless fraudulent as against creditors. Upon that question the evidence discloses no fact or circumstance suf-
Judgment ajjvrmed.