Chipman v. Kellogg

Cahpkell, C. J. Plaintiff presented a claim against the estate of Henry F. Kellogg, deceased, which was carried by appeal from the commissioners to the circuit court for the [441] ‘County of Berrien, where he obtained judgment. Error is brought by the estate. ■ The claim arose out' of an assignment for the benefit of creditors, made May 11, 1876, by the firm of A. B. Chip-man & Son to decedent, which was, by-its terms, made to ■except the statutory exemptions of the partners, who were plaintiff and Gordon Chipman, to whose right plaintiff has •become entitled. The assigned' property included a stock of .goods and some claims and securities. In order to facilitate a sale, the assignors consented to have the whole stock sold together, and to receive the amount of their exemption from the proceeds of the trust. A sale was made shortly after, and the price was received "during that and the next year. The parties all acted upon the idea that there was but one exemption, to the extent of $250, and decedent turned over notes out of which that amount was collected. Subsequently a decision of this Court held that each partner owned an ■exemption, and in 1882 a demand was made against the assignee. The court found there was a balance of assigned funds in tlie hands of the estate of $87.66 which plaintiff was entitled to, but that under -the circumstances there was no claim for any more, and gave judgment for that amount. The only substantial question in the case is whether the action is barred by the statute of limitations. We think there is no doubt of the admissibility of the books of the trust kept by decedent, and of his declarations and admissions on the subject, to show the condition of the fund, and the recognition of the claim if not barred. It is claimed by defendant that immediately on the collection by the assignee of money enough from the assets to pay the exemption he became, without further ceremony, liable in an action for money had and received, so that the statute then began to run. It is not found by the court, and the testimony does not make out very clearly, that all the money for the goods was received six years before the assignee died; ■but there was, perhaps, testimony authorizing a request to .find the law on that basis. But the court finds expressly that $250 of the exemption claim was paid by notes turned over, and there is no finding when this was done, except [442] that it was done before the parties found out they were entitled to $500. It is entirely consistent with a payment within six years, and there is no charge asked, or exception taken, which would cover the question of the effect of this payment to postpone the operation of the statute. But we think the court took a proper view of the case in treating the claim as falling within the trust, and as attaching to the trust fund. It was held in Sheldon v. Rounds, 40 Mich. 425, that where an assignment is made of property subject to exemption, and from which the exempt part has not been selected,, the exempt interest comes of necessity within the body of the-trust, until steps are taken for its separation. That was a case in bankruptcy, but the rule is applicable to all cases-where the whole property is put in the hands of the person' entitled to deal with the remainder. Under such circumstances it is the duty of the claimant to take some steps, by demand or otherwise, before the trustee can be put in fault and made liable to an action.- In the present case, from the finding, it appeal’s that no desire was expressed to have the assignee pay over more than $250 ; and that by the mutual but mistaken belief of both parties no objection was raised to treating the remainder as subject to the general purposes of the assignment; but the fund remained subject to this exemption until exhausted, as it was contained on the face of the assignment itself, and plaintiff stood on the same footing as any other beneficiary of a trust. His interest was in the fund itself, and not a mere personal demand against the trustee; and the court below held rightly that while ho lost all claim to so much of the assets as had been used by his consent in derogation of his claim, he had a right to the remnant undisposed of. All that he was bound to show was his preferred right, and the existence of unexpended money to apply on it in the hands of the estate. The other questions all became immaterial. The judgment must be affirmed, with costs, and. the result certified accordingly. The other Justices concurred.