State ex rel. Billingsley v. Spencer.

Guptil v. McFe, 9 Kans. 30, A. D. 1872. The court say: “The reasons given in the case of Pond v. Kimball, supra, why partnership goods are not exempt from execution are very strong, and we could not, if we would, add any thing to them." How is it to be determined whether the partnership or corporation will desire to reserve any thing as exempt? May a majority of the members determine the matter? Or may those who own an interest greater than one-half determine the matter? And will the minority, or those who represent the less interest, be governed by the majority, or those who represent the greater interest, or vice versa? If one portion of the members is not to be governed by the other por. tion, or if four hundred dollars' worth of the property is to be exempt in favor of some of the members, and not in favor of others, how is the exempted property to be separated from the balance? Can the officer effect the separation? Can any number of the members less than a majority, or can even a majority, do it? Some of the members may have a great interest in the copartnership or corporation. Others may have only a small interest. Some members of a copartnership have only a slight interest in the profits of the business. But if we adopt the theory, which is the true one, that the exemption is in favor of individuals only, we are equally led to the conciusion that partnership property is not exempt from execution." "Suppose the firm should consist of twenty members, could they hold in the aggregate $8,000 worth of property, as 'stock in trade,' exempt from execution, and continue to do business on it without paying their partnership debts, or would they be confined to $400 worth? And suppose that nineteen of the members had no property in the world not exempt from execution, and that the twentieth one had an abundance outside of the copartnership property; could those nineteen, by claiming their exemptions, compel the twentieth one to pay all the copartnership debts? And suppose this twentieth one owned nearly all the capital that had been put into the copartnership; could the nineteen hold their exemptions not only as against the creditors of the firm and others, but also against this twentieth member? We think not. One partner has just as much right to control the disposition of partnership property as another. One partner has just as much right to say that a certain specific article of partnership property shall not be exempt, as another has to say that it shall be exempt. In fact he has a better right, for the partnership was certainly not created for the purpose of holding property exempt from execu tion. If a party desires to retain his personal property as exempt from execution, he must either not put it into a copartnership, or he must get it out of the copartnership and make it his own exclusively before an execution against the firm is levied on it."

In re Handlin, 3 Dill. C. C. Rep. 290, A. D. 1875. This case arose on the claim of exemp tion under the Bankrupt Act. Judge DILLON says: "Taken all together, this language does not contain any thing to favor, but much to contravene, the notion that individual exemp. tions should be allowed out of the partnership estate." "But conceding that the language of the Bankrupt Act and of the Constitution of the State is not so clear to this end as to exclude doubt, the general principles of the law are against allowance of the exemption claimed." "While the adjudged cases relating to the question under examination are rot uniform, a careful examination of all of them justifies me in saying that they are quite decisively against the proposition that individual exemptions can be allowed out of the partnership estate, at the expense of the joint creditors."

Gaylord v. Imhoff, 26 Ohio St. 317; 20 Am. Rep. 762, A. D. 1875. "The members of an insolvent firm are not entitled to the statutory exemptions out of the partnership property, after it has been seized in execution by partnership creditors, notwithstanding all the members join in demanding the exemptions." The court disagree with Stewart v. Brown and Burns v. Harris. They say: "Looking alone to the language of the section above quoted, we find nothing to justify the inference that the legislature in passing it was intending to provide for other than individual debtors, and for the exemption of their individual property from sale on execution; and when construed with the law relating to partnerships, as it has always stood and still stands, we are convinced that it could not have been the intention of the law-maker to bring partners or partnership property within the operation or provisions of the section in any respect." "The right to the exemption, therefore, manifestly depends upon the power of selection, and this power must relate either to property of which the execution debtor is the absolute owner, or to property of which he has the possession or actual control as against the officer holding the execution." This was a unanimous decision.

State ex rel. Billingsley v. Spencer.

On the other hand: Gilman v. Williams, 7 Wis. 336, A. D. 1858. The court say: "The Instruction asked for seems to be based upon the hypothesis that a team of horses which belongs to two men in partnership is not exempt from execution against the firm. Is this sound doctrine?" "If one of these partners had owned both the horses, would they have not been clearly exempt? Can the fact, therefore, that each one of the partners, or joint debtors in the execution, owned a moiety in each of the horses render such moiety liable to execution? If the whole would be exempt in either, would the moieties be liable in both? Does not the greater include the less in this as in other cases?" "The exemption laws are remedial and beneficial acts of legislation, and we are disposed to give them a liberal interpretation and to administer them in the benign spirit in which they were enacted."

Later, in Wisconsin, however, there seems to have been a disposition to limit the doctrine to property divisible in its nature, as in the case of grain, etc., in Newton v. Howe, 29 Wis. 531.

It was said, obiter, in Wright v. Pratt, 31 Wis. 104, "Immunity from sale upon execution seems to imply or be founded upon the idea that the exempt property is necessary for the support of the debtor and his family; and that it may be held, possessed, and used by him in carrying on his business, trade or profession. This seems to be the principle underlying the exemption laws. But it is obviously impracticable to apply that principle to an undivided interest in a horse and buggy, which the debtor cannot claim to hold to the exclusion of his co-tenants." "The property is incapable of division, and each of his co-tenants has the same light to the possession of the horse, buggy and harness that he has. There can be no exclusive possession rightfully belonging to one tenant in common in such property, except with the consent of the other co-tenants. How can the principle of exemption then be worked out and applied to the share of the plaintiff?" The court distinguish Gilman v. Williams, on the ground that "both the owners claimed the exemption," while in the present case, "possibly the evidence will show "— – a new trial being granted—"that only one of the owners is claiming that his third is exempt."

At length in Russell v. Lennon, 39 Wis. 573; 20 Am. Rep. 60, A. D. 1876, the court, on the persuasive authority of Pond v. Kimball, flatly overrule Gilman v. Williams, Judge COLE dissenting on the principle of stare decisis. The court say: "It was no doubt a great temptation in that case, as it has been in this, to support an exemption which might have been, but was not properly asserted; to make the judgment to do a great right, do a little wrong.' But the view of the learned judge who delivered the judgment in that case is clearly erroneous. He reasons that either of the two partners might have held the whole property exempt; that each might hold a moiety of it exempt; and that so the joint suit by both partners for the whole could be sustained. He appears to have overlooked the elementary principle that several rights of several persons cannot be asserted in a joint action at all: that partners can maintain an action as such for partnership rights only. The truth appears to be that this question was very much disregarded in view of others in that case, then deemed of much greater moment." And yet the court in that case called this one of "the more difficult questions involved."

Stewart v. Brown, 37 N. Y. 350, A. D. 1867. The court say: "It is insisted that the clause applies only to a several owner, as the word 'person' is used in the singular number. The short answer is, that by a provision in our general law, when a statute refers to any matter or person, by words importing the singular number, several matters or persons shall be deemed to be included, unless such a construction would be repugnant to the general lan. guage employed. (2 R. S. 778, § 11.) In respect to articles, otherwise within the terms of the act, such ownership as suffices to make them subject to seizure, brings them within the exemption. If each of the respondents had owned a pair of horses, both teams would have been exempt, upon the state of facts found by the referee. It would be an obvious perversion of the statute, to hold that the plaintiffs forfeited its protection, by owning but a single team between them, used for the common support of both. The language of the act should be construed in harmony with its humane and remedial purpose. Its design was to shield the poor, and not to strip them. The interest it assumes to protect is that belonging to the debtor, be it more or less. The ownership of the team may be joint or several; it may be limited or absolute. Whatever it be, within the limitations of the stat ute, the debtor's interest is exempt, in view of his own necessity, and of the probable des. VOL. XXVII- 32

County of Vernon v. Stewart.

titution to which its loss might reduce a family dependent on him for support." opinion was unanimous.

The

Burns v. Harris, 67 N. C. 140, A. D. 1872. The court say, without further consideration: "One of two or more partners cannot have a portion of the partnership effects set apart to him as his personal property exemption, without the consent of the other partner or partners; because the property is not his. But if the other partner or partners consent, then it may be done. The creditors of the firm cannot object, because they no more have a lien upon the partnership effects for their debts, than creditors of an individual have upon his effects. In our case the partners did assent."

This matter is well summed up by Mr. Thompson (Homesteads and Exemptions, § 216), as follows: "We have then in favor of the rule of allowing either to a partnership firm or to the individuals composing it, the exemption fixed by statute, out of the partnership assets, in case there are not sufficient personal assets, a principle of construction which seems obvious and irrefutable, namely, that if the debtor has any interest in property, be it real or personal, which, under the general law, the creditor can subject to the satisfaction of his debt, the statute of exemptions will step in and secure a defined portion of it to the debtor. Against this plain principle we have a rule of convenience merely, supported by a preponderance of authority, but confessedly 'based mainly upon the idea that the exemption here under consideration is several, personal and individual, as well in regard to the property to which it applies as to the right conferred; and also upon the Impracticability of giving it the application sought, growing out of the nature of partnership property and the relations of partners to each other and to creditors'—an impracticability which, in the belief of the writer, is much more fanciful than real."

COUNTY OF VERNON V. STEWART.

(64 Mo. 408.]

Statute of limitations — payment by administrator of one joint obligor.

Part payment upon a bond, by the administrator of one of the obligors before the statute of limitations has run against it, will prevent the running of the statute as to the other obligors.*

A

CTION on a bond. The opinion states the facts.

James B. Gantt, for appellant.

B. G. Boone, for respondent, cited Smith's Adm'r v. Irwin, 37 Mo. 169; Cape Girardeau Co. v. Harbison's Adm'r, 58 id. 90; Van Keuren v. Parmlee, 2 Comst. 523; Shoemaker v. Benedict, 1 Kern. 176; Bell v. Morrison, 1 Pet. 373; Knight v. Clements, 6 Am. Rep. (45 Ala. 89), 693; Root v. Bradley, 1 Kans. 437; Hathaway v. Has

* Compare Bush v. Stowell (71 Penn. St. 208), 10 Am. Rep. 64; Seig v. Acord's Ex. (21 Gratt. 365), 8 Am. Rep. 605; Beardsley v. Hall (36 Conn. 270), 4 Am. Rep. 74; Merritt v. Day (38 N. J. 32), 20 Am. Rep. 362; Knight v. Clements (45 Ala. 89), 6 Am. Rep. 693; Schin del v. Gates (46 Md. 604), 24 Am. Rep. 526.

County of Vernon v. Stewart.

kell, 9 Pick. 42; Callaway County v. Nolley, 31 Mo. 393; St. Charles County v. Powell, 22 id. 525; Abernathy v. Dennis, 49 id. 468.

SHERWOOD, C. J. Action on a school bond against defendant as one of the sureties thereon. Plea of the statute of limitations. The cause was tried December term, 1874, of Henry Circuit Court, by the court without a jury, upon the following agreed statement of facts:

1st. The school bond, the foundation of this suit, was offered in evidence without objection, and was in words and figures as follows: "Twelve months after date, for value received, James Clinton as principal, and John W. Stewart and James W. Morris as securities jointly and severally promise to pay to the county of Vernon, for the use of the common school fund in said county, the sum of seventy-eight and sixty-one hundredths dollars, to be paid into the treasury of the county of Vernon when this bond shall become due, with interest at the rate of ten per cent per annum from date until paid, and which interest is payable on the 31st day of December in each year, and in case of default in payment of the interest, or failure of the principal in this bond to give additional security when thereto lawfully required, both the principal and interest shall become due and payable forthwith, and all interest not punctually paid shall become principal and bear interest at the same rate as principal. Witness our hands and seals this first day of January, 1860.

It had also the following indorsement on it: "Filed and approved by the court, February 9th, 1860; D. C. Hunter, clerk, by Allen Blake, deputy clerk." Also the following: "$44.33 principal paid December 2, 1869, L. C. Hall, per Wey, and also allowed on the within bond the sum of $98.13, in the third class of demands June 7th, 1867, Albert Badger, probate judge."

It was then mutually agreed by plaintiff and defendant that the payment set up in the petition was made as stated in the petition, and that J. P. Maxey was duly and legally appointed and qualified as administrator of James Clinton, one of the obli gors named in the bond sued on, and that said Maxey, as adminis

County of Vernon v. Stewart.

trator of Clinton, on the 2d day of December, 1869, and before the bar of the statute of limitations had attached or run against plaintiff, made a payment of $43.33 on said bond. And it was further agreed that each and every fact stated by plaintiff in his petition was true.

On part of the defendant no evidence at all was introduced, defendant taking the position that plaintiff could not recover on the facts as stated.

The court took the same view of the matter, gave a declaration of law to that effect, and judgment for defendant.

Repeated decisions of this court have settled the matter beyond controversy, that the payment of a portion of a debt evidenced by a promissory note, or similar obligation, by one of the payors before the expiration of the statutory period, would prevent the operation of the statute against the co-maker as well as the party paying. Craig v. Callaway County, 12 Mo. 94; Lawrence County v. Dunkle, 35 id. 395; Block v. Dorman, 51'id. 31. And no reason is seen why the same principle is not applicable, where, as in the present instance, the legal representative of one of the makers makes a similar payment. The statute, after treating of new promises and acknowledgments in writing and the effect to be given them, explicitly provides: "Nothing contained in the two preceding sections shall alter, take away, or lessen the effect of payment of principal or interest by any person," thus clearly showing that the legislature intended to make, and did make, a marked distinction between the attendant results of promises or acknowledgments on the one hand, and partial payments on the other. And if that language just quoted will not comprehend the payment by an administrator, it is difficult to see what language, short of a direct designation of the administrator, would be sufficiently comprehensive to accomplish that result. Had Clinton, the principal in the bond, remained alive and made the payment referred to, no doubt could arise, under the foregoing decisions, but that such payments would effectually prevent the operation of the statute as to the defendCan it alter the nature of the case, because the duty of paying the debt is devolved upon the administrator, rather than, and instead of, the decedent?

ant.

We are clear that it cannot. If the defendant, instead of the administrator, had made the payment, could it be seriously doubted that he would have recourse against the estate of his principal?