Appeal of the Overseers of the Poor

Mr. Justice Mercur delivered the opinion of the court, This contention is for a fund produced by a sheriff’s sale of the real estate of one Gabriel Huntingdon. It arises between his lien creditors and the overseers of the poor. It presents a question of' the power of Huntingdon, after he had become a charge on the poor district, to make and to withdraw, a claim for the $300 worth of property under the Act of April 9th 1849. After the judgments on which the money is claimed had attached as liens to the land, and after a fi. fa. had issued on one of them, but before the return day thereof, Huntingdon applied for relief. An order therefor was duly granted. Under this order the overseers took charge of Huntingdon, and have continued to provide for him. Several days thereafter the fi. fa.'was levied on the land. About a month after the order'of relief was procured, Huntingdon made claim to the $300 exemption. The appraisers found that the land could not be divided without spoiling the whole, and Huntingdon then claimed the $300 out of the proceeds of sale. The land was sold on a writ of vend. ex. Afterwards by writing duly executed by Huntingdon, he withdrew his claim for exemption, and agreed “ that the sheriff pay out the said money as if no such claim had been made.” This writing was returned with the writ on the return day thereof. The sheriff thereupon asked leave to pay the money into court, and it was so paid. The Act of 1849, allowing the exemption, does not force it on a debtor. He may or may not claim it at his option. It is a personal privilege which he may release. It is a contingent right which is lpst by an omission to claim it at the proper time. In case he does duly claim it, he may withdraw the claim at any time before the property is set off or money decreed to him: Kyle and Dunlap’s Appeal, 9 Wright 333. Conceding this power to exist in one who is sui juris, it is contended that Huntingdon could not withdraw the claim. The Act of June 13th 1836, authorizes the overseers of the district in which a person has become chargeableto sue for and recover any real or personal estate belonging to him, and to collect and receive the profits of his real estate, and to sell and dispose of his personal property. It does not, however, divest nor impair any liens on his property existing before he became chargeable on the district. When Huntingdon became chargeable he had no right of property. He had not taken the first step towards acquiring it. He never did acquire it. He was under no more disability at the time he withdrew the claim than when he made it. He did not make it in behalf of the overseers but in his own right. He could not have been compelled to claim it to the prejudice of his lien creditors, either for the benefit of himself or his other creditors. Before any order or decree giving him the money was made, and before his claim was considered and deter [196] mined, he withdrew it. He was as competent to withdraw the claim.as he was to make it. The withdrawal was no fraud on any of his creditors. It was not in conflict with any principle of equity, nor with the policy of the law. No fact is shown tending to put the appellants on higher ground than that occupied by the judgment lien creditors. The learned judge was right in decreeing the money to the latter. Decree affirmed, and appeal dismissed at the costs of the appellants.