Woods v. Sanford

75 Mass. 16

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1857
• Status: Published

Opinion

Bigelow, J.

By St. 1855, c. 238, exempting from levy on execution the homestead of a householder to the value of eight hundred dollars, it is provided, in section third, that “ no property by virtue of the act shall be exempted from levy for any debt contracted previous to the passage of this act.” Under St. 1838, c. 163, § 5, an assignee in insolvency is entitled to “ all property which might have been taken in execution ” against the debtor. It is clear therefore that the demanded premises might have been taken in execution for debts contracted prior to the 27th of April 1855, when the homestead exemption act was passed. It appearing that such debts have been proved against the estate of the insolvent to an amount greater than the whole value of the homestead right of the debtor under St. 1855, c 238, it follows that the entire estate, being subject to levy on execution, vests in the demandant as assignee, who is entitled to recover it in this action.

The mode in which the assignee shall appropriate the proceeds of that part of the demanded premises, which was liable to levy on execution as to some of his creditors and exempt as to others, cannot be adjudicated in this action. The question will properly arise on the marshalling of the assets and must be then determined.

Judgment for the demandant.