The weekly North-Carolina standard. [volume] (Raleigh, N.C.) 186?-1869, 1868-10-28
INTERESTING TO BANKRUPTs.
Opinion of Judge Brooks.

u S. DISTRICT couRT-PAML1co DIsTIcT, NORTH
CAROLINA.
Where, by the State law, property OF certain
amounts exempted from levy and sale, pro-
yidpd tue bankrupt complies with the require
mcnls of the said law, and the bankrupt laiis 10
comply, such property is not exempt rom .he
operation OF the bankrupt act, anr The ass isnee
must sell the same for the benctt Oh creu LOTS.
Re JOHN W FARLSH,
District Of Rdmlico, s $.
Ia. w. ShafFer, one of the Registers In
said Court in Bankruptcy, q" hereby certify
that in the course OF the proceedings IN
said cause before me, the following ques
ton arose pertinent to the said proceedings,
and was stated and agreed to by the conn-
sci for the opposing parties, to wit: Mr..
John j. jackson, who appeared tor the HaiK-
rupt. and Mr.. John Manning, jr who APP
pearcd for M. II. s. John McCloor, executors
of Evander McCloor, deceased, one OF the
creditors of said bankrupt, and agreed TO
the following statements of facts
On the 18th day of August, 1868, VIM ?.
Guntcr ti,e assignee of the aforesaid bank
rupt. returned into this office Il schedule OF
property designated and set apart to be re-
tanned by the bankrupt aforesaid, as his own
property under the provisions OF the l4th
Section of the Bankrupt Act. and after set
ting apart the personal property allowed by
tie State laws. and the personal property
allowed by the Bankrupt Act, this last
amounting to the sum of S499,S0, the as
signee sets apart to be retained by the bank
rupt u homestead OF 80 acres OF land to IN
clude dwelling, outhouses and spring OF the
value of $500, claiming the same under the
Act of the General Assembly of North Car
oIina, passed at its session of 1858 d 1859,
chap. So, entitled an Act to Establish II
Freehold Homestead" said bankrupt not
having complied with the provisions of said
Act. Its insisted 10y the said NJ. II. &Join
McCloor. executors as aforesaid, that the
aforesaid bankrupt is not entitled to the
benefit of the above recited Act to Establish
Freehold Homestead" the aforesaid bank
rupt not having complied with any of the
provisions of the said Act, and that the said
Freehold Homestead of 80 acres, valued at
$500. oUGht to be stricken from the schedule
as exempted property filed by the assignee
in this case, and the same be liable to the
debts of the said bankrupt, and the said
parties requested that the same should be
certified to the Judge for his opinion there
on.
Dated at Raleigh. n. c., on the 30th day
of September, 1868.
A. W. SHAFFER,
Register.
BROOKS, 1.-THE question certified in this
cause by Mr.. Register Shaffer Isl
Is the bankrupt entitled to the homestead
provided for by tie Act of Assembly of
North Carolina passed at the Sessions of
1859. as an mption-when the bank
rupt has not filed his petition, and had the
same laid off to him according to the pro-
visions of said Acts
have 10 doubt as to the answer | must
make to the question certified. The bank
rupt is not entitled to the exemption of the
homestead claimed by him.
The language used in the 18th Section of
the Bankruptcy Act is much more clear--less
doubtful as to its meaning, than that employ
ed in many other sections of the Act.
The first part of this section, being the
46th General Clause of the Act makes IL
clear provision in regard to the character of
the title which passes to the assignee in the
bankrupt's property by the assignments, and
as clearly provides that it shall embrace all
his property, real and personal, except AS
hereinafter provided.
Now, does the exceptions provided for in
the same section, 41th General Clause en-
brace homestead under the circumstances
of this casee think it does not, and am
very clear OF Ct'uDu Ill rlIaJ opinion.
1t is by virtue of the latter part of the
General Clause last referred to, that this eX-
emption is saved to the bankrupt, as he con-
tends. That simply provides that in addi-
tion to such exemptions as had been previ-
ously provided for, there should be exempted
and excluded from the operations OF the law
all such property as was exempted to
debtor, and not liable to execution, accor-
ding to the provisions of the laws of the
State in force in 1868, in which the bank
rupt resided.
Now, if any creditor of this bankrupt,
previous to his bankruptcy had warranted
or sued him, obtained his judgments and
his execution-could not such creditor have
levied upon and sold all the title of the de-
PENDANTS in such execution in the lands now
claimed to be exempted as a homestead?
If no other property could be found,
would not the officer having such executions
| in hand have been bound to levy upon the
homestead and if lie had failed to do so,
would he not have been responsible to the
creditor? l think he would
| The Act of 1859 provides that debtors
may petition to Court, have Commissioners
| appointed, that such COMMISSIONERS after
| being sworn shall examine the lands in
which the reservation is desired, that they
shall report, and that such report shall be
| recorded, and that the lands so valued and
reported shall, after the proceedings hare
| Dee3l registered, not be subject TO he sold by
| creditors whose debts have been thereafter
oontractea 1t follows that for any debt CON
tracted at any time prior to the conforming
| on the part of the debtor to all tile require
ments of that Act, the homestead is not re
| lieved, and if the debtor does not at any
time comply with its provisions, as in this
case, there can be no debts of his from which
| the homestead is relieved
The objection taken by Mr.. Jackson, coun-
sci for the bankrupt, that the exceptions to
the report of the assignee was not taken in
an apt time, cannot be sustained.
fhe question in this case is not whether
too much or not enough has been assigned
the bankrupt by the assignee But whether
under the law this property could be en-
braced in the list of exemptions or whether
the title to the same did not by force of the
law aad the assignment pass to the assignee,
for the uses and purposes declared in the
Act think that all the title held by the
,, bankrupt at the time of filing his petition,
did so pass to the assignee, and that the
I lastnamed officer must now sell the same,
! and hold the proceeds to he distributed un-
: der the law.
Let this be certified to A. W. Sha6er, Esq,
Register.