Opinion
(Decided 3 May, 1898.)
Personal Property Exemptions — Assignment — Nonresident.
Where a resident of this State executed a deed of trust in which he reserved his personal property exemption and before it was allotted assigned it to A. and became a nonresident: Held, that neither A. nor attaching creditors are entitled to the benefit of the exemption, but the title to the whole vested in the trustee.
ACTION, tried before Hoke, J., and a jury, at October Term, 1897, of MECKLENBURG. The facts are stated in the opinion. From a judgment declaring that the title to the property in controversy was vested in the defendant Bell, trustee, both Edith J. Amer and the attaching creditors of Farintosh Amer appealed.
Jones Tillett and Clarkson Duls for Edith Amer (appellant).
Burwell, Walker Cansler for Bell, Trustee.
H. W. Harris for appellant.
Burwell, Walker Cansler for appellee.
Alfred Amer, at the time of the execution of the deed of trust to Bell by himself and his partner Farintosh, on 26 September, 1895, was a resident of the State of North Carolina, as he was likewise on 27 September, 1895, when he assigned and conveyed to Edith J. Amer the personal property exemptions which he had reserved in the deed made by him and Farintosh to Bell. After Bell took possession of the property conveyed to him in the deed of trust, and after Amer, the debtor, had become a nonresident of the State, under an execution in favor of one Evans issued upon a judgment obtained after the execution of the deed of trust, the officer in charge laid off and (640) allotted the debtor Amer's exemptions in the property, in the hands of Bell, the trustee, to Edith Amer, but without taking them out of Bell's possession. Bell claims them under the assignment to him by Farintosh and Amer on the ground that the personal property exemption received by Amer in the deed to him was personal to the debtor; that having left the State and become a nonresident without having had the exemptions allotted to him, he was not entitled to the benefit of the same; and that the title to the whole of the property mentioned in the deed of trust passed to him as trustee.
All these facts were admitted on the trial, and his Honor instructed the jury that in no aspect of the case was Edith J. Amer, the appellant, entitled to the property in controversy, and directed the jury to answer the seventh issue ("Is Edith Amer entitled to the property in controversy under and by virtue of her assignment from Alfred Amer, of date 27 September, 1895?") "No."
There was no error in this instruction. Norman v. Craft, 90 N.C. 211; Bruno v. Hardie, 88 N.C. 243. The assignability of articles of personal property allotted to a debtor as his personal property exemption is not in question here.
No error.
APPEAL OF ATTACHING CREDITORS IN SAME CASE.
For the reasons set out in the appeal of Edith Amer, the attaching creditors were not entitled to the proceeds of the goods in the hands of Bell, trustee. His Honor's instructions to that effect (641) were proper.
No error.