Cullen v. Harris

Michigan Supreme Court

Cullen v. Harris

69 N.W. 78, 111 Mich. 20, 1896 Mich. LEXIS 536

CourtMichigan Supreme Court

DecidedDecember 1, 1896

StatusPublished

Cited by19 cases

This text of 69 N.W. 78 (Cullen v. Harris) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cullen v. Harris, 69 N.W. 78, 111 Mich. 20, 1896 Mich. LEXIS 536 (Mich. 1896).

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Opinion

Montgomery, J.

(after stating the facts). The sole, question presented on the record is whether, under the circumstances set out in the statement of facts, the proceeds of the sale of exempt property, designed for investment in other exempt property, to take the place of that sold, are subject to attachment while in the hands of the debtor, kept as a separate fund, or are, before reaching his hands, subject to garnishment. The authorities upon this subject are inharmonious. There are cases holding, as • contended by plaintiff, that the proceeds of the voluntary sale of property exempted from execution are not exempt. Wygant v. Smith, 2 Lans. 185; Knabb v. Drake, 23 Pa. St. 489 (62 Am. Dec. 352). The latter case even goes further, and holds that, where property is taken from the owner by proceedings in invitum, a judgment recovered for such wrong is subject to garnishment. But this holding is in conflict with the great weight of authority, and it is generally held that in such case, as well as in the case of a loss of exempt property by fire, the proceeds are exempt, at least until such time as the owner has reasonable opportunity to' appropriate the proceeds to the purpose of replacing the exempt property wrongfully taken from him, or consumed by fire. See Cooney v. Cooney, 65 Barb. 524; Tillotson v. Wolcott, 48 N. Y. 188; Mudge v. Lanning, 68 Iowa, 641; Rood, Garnishm. § 98; 1 Shinn, Attachm. § 71; Thomp. Homest. & Ex. § 748. It has also been held in various jurisdictions where the rule obtains, as in this State, both as to personal and real property exempt, that the owner has the right to sell or exchange such exempt property, [22]*22and that such sale does not result in establishing a lien in favor of the creditor, or render the property, after the sale, subject to levy, that the money derived from the sale of a homestead, designed in good faith to be applied to the pui’chase of another homestead, and kept separate from other funds for that purpose, is not subject to seizure by creditors. See Watkins v. Blatschinski, 40 Wis. 347; State v. Geddis, 44 Iowa, 537; 1 Shinn, Attachm. § 71; Rood, Garnishm. § 97. We can conceive of no reason for distinguishing between the proceeds of exempt personal property and the proceeds of an exempt homestead, and we think the rule of the Wisconsin and Iowa courts in harmony with the liberal interpretation of the exemption laws which has always obtained in this court.

The judgment of the court below will be affirmed.

The other Justices concurred.

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Montgomery, J.

(after stating the facts). The sole, question presented on the record is whether, under the circumstances set out in the statement of facts, the proceeds of the sale of exempt property, designed for investment in other exempt property, to take the place of that sold, are subject to attachment while in the hands of the debtor, kept as a separate fund, or are, before reaching his hands, subject to garnishment. The authorities upon this subject are inharmonious. There are cases holding, as • contended by plaintiff, that the proceeds of the voluntary sale of property exempted from execution are not exempt. Wygant v. Smith, 2 Lans. 185; Knabb v. Drake, 23 Pa. St. 489 (62 Am. Dec. 352). The latter case even goes further, and holds that, where property is taken from the owner by proceedings in invitum, a judgment recovered for such wrong is subject to garnishment. But this holding is in conflict with the great weight of authority, and it is generally held that in such case, as well as in the case of a loss of exempt property by fire, the proceeds are exempt, at least until such time as the owner has reasonable opportunity to' appropriate the proceeds to the purpose of replacing the exempt property wrongfully taken from him, or consumed by fire. See Cooney v. Cooney, 65 Barb. 524; Tillotson v. Wolcott, 48 N. Y. 188; Mudge v. Lanning, 68 Iowa, 641; Rood, Garnishm. § 98; 1 Shinn, Attachm. § 71; Thomp. Homest. & Ex. § 748. It has also been held in various jurisdictions where the rule obtains, as in this State, both as to personal and real property exempt, that the owner has the right to sell or exchange such exempt property, [22]*22and that such sale does not result in establishing a lien in favor of the creditor, or render the property, after the sale, subject to levy, that the money derived from the sale of a homestead, designed in good faith to be applied to the pui’chase of another homestead, and kept separate from other funds for that purpose, is not subject to seizure by creditors. See Watkins v. Blatschinski, 40 Wis. 347; State v. Geddis, 44 Iowa, 537; 1 Shinn, Attachm. § 71; Rood, Garnishm. § 97. We can conceive of no reason for distinguishing between the proceeds of exempt personal property and the proceeds of an exempt homestead, and we think the rule of the Wisconsin and Iowa courts in harmony with the liberal interpretation of the exemption laws which has always obtained in this court.

The judgment of the court below will be affirmed.

The other Justices concurred.

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69 N.W. 78, 111 Mich. 20, 1896 Mich. LEXIS 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cullen-v-harris-mich-1896.

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