Page:North Dakota Reports (vol. 1).pdf/229

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RED RIVER NATIONAL BANK v. FREEMAN.
205

465; Mulford v. Shirk, 26, Pa. St. 473; Dow v. Platner, 16 N. Y. 562; Smith v. Mitchell, 12 Mich. 180; Brooks v. Nichols, 17 Mich. 38; Simpson v. Robert, 35 Ga. 180; Bank v. Cox, 6 Me. 395. But then it is said the act of 1861 exempts the property of the debtor only from sale under execution, and makes no provision for the exemption of property under an assignment for the benefit of creditors. This may be so, but the act of 1861 was passed in pursuance of the state constitution, which provides that ‘laws shall be passed by the general assembly to protect from execution a reasonable amount of the property of the debtor, not exceeding in value the sum of five hundred dollars. The object of the law was to prevent a debtor from being stripped of all his property, and it ought to be liberally construed. As his property could be taken and sold only by way of execution, it provided in terms for the exemption in such cases. By the terms of the act, the debtor may select property to the value of $100, to be ascertained by three appraisers to be summoned and sworn by the officer levying the execution. And if the property cannot be divided so as to set apart a portion of it, of the value of $100, without loss and injury to all parties concerned, then the property is to be sold, and the debtor is to be awarded $100 of the proceeds of sale. Now, an assignee for the benefit of creditors is in equity a trustee for all parties in interest; and, although the act of 1861 makes no provision by means of which the property exempt may be ascertained under a voluntary assignment, yet we see no reason why this may not be done under the supervision of a court of equity, on application of the assignee, or of any other party in interest. No provision is made by the act where the debtor applies for the benefit of the insolvent laws, and yet in such cases the exemption is made under the direction of the insolvent court. Construing the act of 1861 in connection with the provisions in the constitution, it is clear, we think, the legislature meant to exempt, under all circumstances, the property of the debtor, of the value of $100, from the claims and demands of his creditors. It would be, it seems to us, a narrow construction to declare an assignment for the benefit of creditors fraudulent and void merely because the debtor received from its op-