The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1871-02-09

eI,a District court OF the united SbaD6e-f
Eur the southern District of Mississippi. !
49, Jackson In said District on the LIST day OF
February, A. ID. 1871. Before the Hon.
X. A. Hill, District Judge sitting in
Bankruptcy.
In the matter of
A 5 6: SsiH 5s; Bankruptcy
This is a petition in the nature of Bill Of
Review praying that the order and decree
this Court made on the 9TH day OF july.
isgg setting off to Mrs. Buckner as her
homestead. the tract OF land and improve
-nents thereon upon which she resided in
CIaiborne county, she having been previ-
ousIy adiudicated Bankrupt.
To this petition or bill Mrs. Buckner has
eled general demurrer which raises the
question as to whether or not the petition
sats forth sufficient reasons TO entitle thu
petitioner to the relief prayed for.
The reasons stated in the petition
are that the petitioner is a creditor OF
Mrs. Buckner, aud had at the time of filing
his petition proved his debt. That the band
and improvements exempted 10 ner are
worth greatly more than the sum OF fifteen
hundred dollars. That Mrs. Buckner had
not filed any petition to have the same set
III and that the assignee had made no re-
mort of the allotment OF said homestead,
and that he, the petitioner, bad had no OPP
portunity to except - Nh Ine Rnntr .h m m
slsse1 me Homestead did not vest in the
Iillo nee and that no action as to that prop
~ was necessary upon his part. 1t is true
80 the title to the homestead, as well as the
svanpt personal property does not vest in
10 assignee but some action is necessary to
de.i0nate the property so exempt. The
.ebedule to the petition designates the prop
orfv claimed as exempt, and is part of the
ystition, and it is msde the duty of the as
E,rpe within twenty DAYS after he receives |
of a-@iUDment Il FpnOrt the
s-fv exempt as set off by him with its value |
snd the creditor or the bankrupt may with |
n twenty days after the filing of his report |
40 exceptions thereto, the reasons for /
which apply as well to the homestead as to /
tbe personal property. Several things are /
recessary to constitute this homestead |
LAIN: First, the Bankrupt must be the
Mead of a family; second, the property must
ar rhe time OF filing the petition be used
and occupied as residence and
third. must not exceed in quantity I6O
acres and in value $500. The ASST nee in
examining aud setting of the property acts
a. the officer of the Court and by filing his
rpport gives to the bankrupt the opportun-
ifg of Directing if the articles are not salts
factorv or To any creditor who may have
nroyed his claim and who may believe
t,o much has been set off by Directing
On thataccOunt. But 10 entitle the creditor
10 object he must have first proved his
Ella y u -
nroye their claims on the first meeting of
creditors. This precedes the Deed of As
siUument. Within 20 days after the assign
nae 10 the report of the assignee should |
lave been filed and unless exceptions are
led within 20 days after the filing of the
R.port the allotment will without further
~ Ter stand approved. The fact that the re-
nnrr was not made within the time prescrib-
ri would not defeat the claim made in the |
petition for the exemption. as the report is
the act of the assignee and not that of the
the bankrupt. The petition in this case |
was filed May 22d. 1868. The first meeting
for creditors and the appointment ofan as
signee was held on the 2lst of December, ! 1
1865; on the 9th day of January, 1869 the I
a,sigree accepted the truSt--at what time he |
received the assignment does not appear.
On the 9th of April, 1869, no debts against
Mr.. Buckner having been proved, she filed
her petition for final discharge. and on the !
list day of June, 1869, the Discharge meet n
Ing was held as well as the ID aud 81 meet
ing Of creditors, and at which time no cred
TORS appeared and proved their claim. The :
Register sent up the papers with h certif-
icate Of conformity for the final action of .
the Court on the 9TH day of July. 1862 No y
creditor having proved his claim and not
fuding among the papers the report of eX- :
emption, the Court by "a decree confirmed :
and set off the homestead exemption as
prayed for. The petitioner did not prove
Or file his debt until the 9th of July, 1869. ,
two days after the order was made. The
complaint made in the petition is that this ;
order of the Court setting off the eXemp-
ion was unauthorized, and. that is the ques-
ion TO be determined. The petitioner was
lotifed to file his prof OF debt on the 2lst
t December. 1865, this he failed to do !,
lga n publication was made notifying him ,
Nth other creditors, that a I'd, 81 and last ,
Meeting of creditors would be held on the
list OF June, 1869, six months thereafter, +.
and sill he failed TO prove and file his de- ,
maud, and no claim was set up upon his
part until after the making OF the order and
decree complained of. The petitioner states
in his petition that within less than two
weeks before the order was made his attor-
ney examined the proceedings in the cause
with view to excepting to this exemption,
50 that he knew of the proceedings and
proving and filing his debt until after the
exemption had been decreed. The petitioner
is not prejudiced by reason of the failure to
file the report of the homestead exemption :
Had it been filed within the time prescribed
BY the rules of the Court it would have :;
stood approved. petitioners claim not having !
been filed and no investigation as to wheth-
er 1t had been flea until long after the time r
would have expired. The Court had a gen
ea jurisdiction of the whole case includ-
mg the question of exemption The petit
TONER had his day in Court by due notice =,
gTeu of which he neglected to avail him
elf and that there was no error in making
he decree of which he can complain APP
pear upon his own showing, although il i,
night have been otherwise had he proved :
Bis claim and been prepared to except to .
The report had it been filed within the prop !,
er time. For these reasons the demurrer to
lie petition will be sustained and the petit "
lun dismissed at the cost of the petitioner. ,r
Z. a. HILL.