Wills v. Downs

Pleasants, J.

This was a petition filed by appellant in the County Court, setting forth that he was a member of the firm of S. A. R. Willis & Son, which had made a general assignment to appellee for the benefit of its creditors, under the statute; that he was the head of a family, residing with the same, and as such entitled to an exemption of property of the value of §400, to be selected by him out of the stock of goods so assigned and now in the hands of appellee; that his partner consents to such exemption; that by the assignment lie did not convey nor intend to convey what was .exempt by law, and that he has no other property out of which he can have said exemption set off to him. It therefore prays for an order to the assignee to set off the same out of the stock so in his hands.

To this petition a. demurrer was interposed by the assignee, which was sustained by the County Court, and also by the Circuit Court on appeal, and judgment entered accordingly. We think appellant had no such property in the stock before or after the assignment as would entitle him to the statutory exemption ont of it. Firm assets are a trust fund for the payment of its creditors. The partners individually can have no absolute property in it or in any specific part of it until the creditors are fully satisfied. This elementary doctrine of the law of partnership has been held to bar analogous claims of dower and homestead exemption in real estate of the firm Trowbridge v. Cross, 117 Ill. 109; Simpson v. Leech, 86 Ill. 286; Bopp v. Fox, 63 Ill. 540; its like operation upon personal property to bar such a claim as is here made is clearly recognized in Heckle v. Grewe, 26 Ill. App. 339, and same case in 125 Ill. 58; and the precise question here presented is decided in the case of Croft Brothers, 8 Bissell, 188, and in Ex parte Hopkins, assignee, 104 Ind. 157.

We are unable to see how a dissolution of the partnership or the consent of the copartner, before the firm creditors are satisfied, can operate to give a partner any greater right to the firm assets or any part thereof, as against the creditors, than he would otherwise have.

Judgment affirmed.