Bausman's & Herr's Appeal

Mr. Justice Meeour

delivered the opinion of the court,

The appellants are assignees in trust for the benefit of creditors. The property assigned was mostly land; the personalty being of the value of $39 only. The assignor excepted and reserved from the operation of the assignment, “such an amount of property, real and personal, as is by law exempt from levy and sale on execution, and *180 distress for rent by virtue of the Act of 9th April 1849.” The appellants received rent for the use of the farm after the assignment, not on a term or lease existing at the time cff the assignment, but on ' a letting afterwards. They also sold the land, but the sum realized therefrom was insufficient to pay the judgment-liens for purchase-money in favor of the appellee. As the assignor could not hold any portion of the land against such a lien, he could not claim any of the proceeds to its prejudice. The other question is whether, by virtue of the Exemption Law, he can claim the money received by the assignees as rent? We are clearly of the opinion he cannot. The general right of the assignor to except and reserve from the assignment property to the value of $300, is undoubted. He may not do so out of land to the injury of one holding a lien for the purchase-money, or a judgment-lien in which the exemption from execution is waived. His claim, however, must be restricted to some property which he owned, or in which he had an interest, at the time of the assignment, or, at the furthest, to the proceeds for which that property sold. It cannot extend to money made by the assignees’ care, management and use of the assigned property. The whole intent and spirit of the act is to leave him something which he already has, and of which he might otherwise be deprived at that point of time. Whatever was unreservedly assigned passed to the assignees in trust for the benefit of all the creditors of the assignor, according to their legal and equitable rights. The income or product of the property, while in their hands, is held by them in like manner. It follows, the appellants were not justified in paying to the assignor, under his reservation in the assignment, the $250, which they received as rent.' The learned judge was therefore correct in -surcharging them with the sum they paid him in excess of $39.

Decree affirmed, and appeal dismissed at the costs of the appellants.