Mapp v. Long

Bleckley, Justice.

1. At the time the schedule was filed and recorded, Susan Long was the wife of Frank Long, the latter being then in life and an inmate of the lunatic asylum. But the schedule did not disclose on its face that she was the wife of anybody; on the contrary, it represented that she was the head of a family, and she claimed the exemption in no other character. If she had claimed as wife and disclosed that the.property (as it really did) belonged to Frank Long, her husband, and that he refused to seek the benefit of the law, she would have been within the scheme of the Code, §2041. Perhaps, as he was insane and confined in the asylum, this fact, had it been set forth, would have been the legal equivalent of a refusal on his part. I think it would. The schedule nowhere directly affirms to whom the property belongs, but the fair inference from it would be that she was a widow or otherwise single, and that the property was her own. Surely, such a schedule is no notice to Frank Long’s creditors, or to the public who might deal with him, that his property was to be tied up. What the schedule- indicates is, that she was putting her own property under shelter, against her creditors. There is no suggestion in it that Frank Long or his creditors had, or might have, any concern with what she was doing. As against his creditors, therefore, the schedule and the record of it are without any force or effect whatever. The schedule was filed and recorded on February 5, 1878. On the 4th of March following, the ordinary passed an order which describes Susan as the wife of Frank Long, but that order is no part of the schedule and cannot be looked to in aid of it. Even if it could be, it stops short of showing that the property was dealt with as Frank Long’s. The order is set out in the reporter’s statement.

2. Frank Long having died and Mapp’ holding a note upon him, made in December, 1877, for twenty-five dollars, the latter administered upon his estate as a creditor. The note waived all homestead and exemptions rights, and stipulated for the payment of the costs of collection, including ten per cent, for attorney’s fees. In granting the present injunction, the chancellor seems to have treated this waiver as effective, so far as to allow a sort of administration upon the rents and profits of the realty through the creditor as a receiver, but the regular course of administration was arrested. Moreover, all expenses of administration incurred by Mapp, were denied to be a charge upon the property, and were covered by the injunction. Independently of the waiver, there was, as we have ruled, no exemption; but if Mapp’s debt was open at all against the property, whether by the general law or the waiver, and he had to administer in order to collect it, surely he was entitled to be paid his legal expenses and commissions for administering. The expenses of administration rank next in order to those of sepulture and last sickness ; they are superior even to taxes. Code, §2533.

3. A part of the object of the bill seems to be to patch up and repair errors and mistakes in the phraseology of the schedule we have been considering, or to hover under the friendly wing of equity as a refuge against their consequences. But what necessity is there to resort to equity to secure the exemptions allowed by §2040 of the Code in the ease of an insolvent estate ? Section 2049 provides for the case, and the widow, while a wife, having failed to assert her right in a proper manner, can now assert it as widow by simply returning a proper schedule to the ordinary and having it recorded. This will hold off the administrator as to claims which do not for some reason override the exemption right, so long as the right has continuance. When the right has terminated, administration will then take its due course as to all claims outstanding.

4. The repeal of sections of the Code 2047 and 2048, by the act of 1876, works this result — that the specific exemptions secured since that act took effect are no more durable than are the ad valorem exemptions of the constitution. There is a similar reversionary interest left in the debtor in both classes of homestead or exemption, the short and the long; and when the time arrives for that interest to be enjoyed in possession, it is subject to be appropriated to the payment of debts. For the present, however, there is nothing in the way of any creditor of Frank Long, as no exemption of any kind in his property has been secured. The chancellor erred, therefore, in interfering at all with the regular course of administration.

Judgment reversed.