Nason v. Hobbs , 75 Me. 396 ( 1883 )

Virgin J.

The proceedings in insolvency were commenced on June 7, 1882, at which date, the property of the insolvent not exempt from attachment and seizure on execution, became vested in the plaintiff as his assignee, stat. 1878, c. 74, § 30. The seizure of the horse on execution having previously taken place was not affected by the insolvent proceedings, Storer v. Haynes, 67 Maine, 420, 422. The construction of a similar provision in the U. S. bankrupt statute, by U. S. supreme court is to the same effect. Wilson v. City Bank, 17 Wall. 473.

What property of the insolvent was exempt ? That depends upon what property he owned on June 7, 1882, when proceedings in insolvency were commenced. He could not claim as exempt, property which he did not own that day. He then owned one horse, which his father — residing on the insolvent’s farm in the latter’s absence from the State, and claiming to act for him — selected as exempt when the other horse was attached. He did not then own the oxen, for he had sold them the day before to the defendant; and he could not legally claim sold oxen as exempt, especially when he still had an exempt horse. N. S., c. 81, § 59, clause 7.

But the case finds that the sale of the oxen was made with a view upon the part of both vendor and purchaser to give a preference to the latter; and hence it was void: and the assignee is expressly authorized to recover their value from the purchaser. Stat. 1878, c. 74, § 48. The value being admitted to have been 8175 at the time of commencement of proceedings in insolvency, and the defendant having refused to surrender the oxen on demand made August 30, 1882, the entry must be,

Judgment for jflaintiff. Damages assessed at ‡175, and interest from August 30, 1882, to the date of the judgment.

Appleton, C. J.s Walton, Peters, Libbey and Symonds, JJ., concurred.