Titus v. Warren

START, J. In the court below the trustee was adjudged liable, on account of money due and owing from him to the principal defendant for a homestead conveyed to him by the defendant; and the case comes to this court on exceptions taken by the trustee and claimant, who claim that the sum thus due is exempt from attachment by trustee process. The plaintiff in his specification set out several items of account, some of which accrued before and some after the homestead was acquired. The court properly allowed the plaintiff to waive his right of recovery upon items of his account which accrued subsequent to the time the defendant acquired his homestead, and rendered judgment against the principal defendant for only such causes of action as existed at the time of acquiring the homestead. It is clear that the judgment is founded upon a cause of action which existed at the time the homestead was acquired. The judgment being founded upon such cause of action, the funds in the hands, of the trustee were subject to attachment by trustee process. R. L., s. 1076, relied upon by the trustee' and claimant, exempts from attachment by trustee process such sums only as are due and owing to the principal defendant for property sold and conveyed by him, which was, at the time of the sale, exempt from attachment and levy upon execution. R. L., s. 1901, expressly provides that the homestead of the debtor shall be subject to attachment and levy upon execution upon causes of action existing at the time the homestead was acquired. The authorities cited in support of the claim that a cause of action accrues at the date of the last item of an account, [245] have no application to this case. The causes of action for which the plaintiff recovered judgment against the principal defendant all existed before the date of the last item on the specification, and before the homestead was acquired. The existence of the cause of action at the time the homestead was acquired determines the right of the plaintiff to attach the funds in the hands of the trustee. The statutes above cited make the right to depend upon the existence of the cause of action, and not upon whether the demand is due, so that an action could be maintained at the time the homestead was acquired. Judgment affirmed.