Brooks v. Nichols

17 Mich. 38, 1868 Mich. LEXIS 35

Opinion

Cooley Ch. J.

We are of opinion that the Circuit Judge erred in not rendering judgment for the plaintiff on the special verdict. That verdict established the bona fides of the assignment by McDonald, and the only question that could remain was, whether it was void in law by reason of the omission to select out the exempt property. This question we regard as settled by the decisions of this court in Hollister v. Loud, 2 Mich. 323, and Smith v. Mitchell, 12 Id. 180.

■ The supposed difficulty of sustaining an assignment which assumes to transfer property not separated from a larger quantity, is not met with in these cases. The assignment is in effect a transfer of the whole property, subject to a right in the assignor to select out a certain portion, or certain articles, which the law, on the selection being made, absolutely sets aside for the benefit of himself and his family. The assignment passes for the benefit of creditors the same interest precisely which an officer would seize by virtue of execution, and there is no more difficulty in making the selection of exempt property in the one case than in the other. The principle is not new; transfers of the debt- or’s property, under bankrupt aud insolvent laws, are subject to the like right of selection, and we are not aware that any difficulty has been supposed to exist in the title of the assignee in those cases. He succeeds to the rights of the bankrupt or insolvent, acquiring, however, so far as exempt property is concerned, a defeasible title, which is divested when the selection is made. The trustee, in a voluntary assignment, stands on the same footing, and is entitled to the like protection.

The judgment of the court below should be reversed, and judgment rendered for the plaintiff for six cents damages, and the costs of both courts. ' .

Campbell and Graves JJ. concurred. Christianoy J. did not sit.