Titus v. Warren

• Decision Date: 29 January 1895
• Parties: TITUS v. WARREN et al.
• Court: Vermont Supreme Court

31 A. 297

67 Vt. 242

TITUS

v. WARREN et al.

Supreme Court of Vermont. Caledonia.

Jan. 29, 1895.

Exceptions from Caledonia county court; Tyler, Judge.

Action of assumpsit by I. P. Titus against W. E. Warren and another (a trustee) on an open account, and to subject the proceeds of the homestead of defendant Warren to the payment of his debt. Judgment was rendered for plaintiff, and defendants except. Affirmed.

The debt due from the principal defendant to the trustee was for the purchase price of the defendant's homestead, and the question was whether this fund was attachable upon the plaintiff's debt. The defendant acquired his homestead April 20, 1889. The plaintiff's account was a store bill which accrued from 1886 to 1891. Upon the trial the plaintiff was allowed, against exception, to waive all those Items which accrued after April 20, 1889. The plaintiff's account continued to be an open book account until after the date of acquiring the homestead, and items of both debt and credit entered into it after that date.

B. E. Bollard, for plaintiff.

W. H. Taylor, for defendants.

START, J. In the court below the trustee was adjudged liable on account of money due and owing from him to the principal defendant for a homestead conveyed to him by the defendant; and the case comes to this court on exceptions taken by the trustee and claimant, who claim that the sum thus due is exempt from attachment by trustee process.

The plaintiff, in his specification, set out several items of account, some of which accrued before, and some after, the homestead was acquired. The court properly allowed the plaintiff to waive his right of recovery upon items of his account which accrued subsequently to the time the defendant acquired his homestead, and rendered judgment against the principal defendant for only such causes of action as existed at the time of acquiring the homestead. It is clear that the judgment is founded upon a cause of action which existed at the time the homestead was acquired. The judgment being founded upon such cause of action, the funds in the hands of the trustee were subject to attachment by trustee process.

R. L. § 1076, relied upon by the trustee and claimant, exempts from attachment by trustee process such sums only as are due and owing to the principal defendant for property sold and conveyed by him, which was, at the time of the sale, exempt from attachment and levy upon execution. R. L. § 1901, expressly provides that the homestead...