Russell v. Lennon

Eyax, C. J.

There appears to. be no doubt that if the respondents had held the property claimed in this action, in equal moieties in severalty, they would have been entitled to hold each his share, as his exemption under the statute. And, upon the levy of the execution on the partnership property, they had a right to sever their interest in it; and each might thereupon have claimed his exemption in his separate part. Newton v. Howe, 29 Wis., 531 . The difficulty in the way of the respondents in this case is not in their individual rights under the statute, but in their failure properly to assert them.

The principle of all exemption laws in this state is very clearly expressed in the constitution itself. “ The privilege of the debtor to enjoy the necessary comforts of life should be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale,” etc. This principle makes all constitutional exemption a personal privilege of each debtor, secured to him individually, not in mere benevolence only, but also in the interest of the state in the personal well being of each of its citizens. Maxwell v. Reed, 7 Wis., 582 ; Bull v. Conroe, 13 id., 233. And the statutes of exemption appear to be framed on this principle. They go to secure the necessary comforts of life to families by exemption to heads of families; and the letter and spirit of exemptions follow the constitutional principle, in securing a personal privilege to each *574 debtor individually. There may be joint debtors, but our constitution and statutes sanction no joint exemption. The exemption “ applies to the debtor in the singular number, and is personal and individual only.” Pond v. Kimball, 101 Mass., 105 .

We are aware that there are several cases to be found, chiefly in the federal bankrupt courts, sustaining exemptions to partnerships as such. But we cannot think that these cases rest on sound principle. We have already seen that the principle of exemption and the provisions of the statute are personal. And the difficulties suggested by the supreme court of Massachusetts in the way of partnership exemptions seem to be insuperable. Pond v. Kimball, supra. We have no doubt, that, in proper cases, each member of a partnership is entitled to his separate exemption out of the partnership property; and that the partnership property, after levy, may be severed by the partners; so that each partner may have his several exemption. But it seems to us to be as indefensible to extend the personal privilege of exemption to a partnership, as such, as to extend it to a corporation aggregate. In the language of the Massachusetts court: “The exemption, in our opinion, is several and not joint; .... is personal and individual only.”

It is true that the judgment in this case is supported by Gilman v. Williams, 7 Wis., 329. That case indeed went upon the exemption of one to a partnership of two. But as the one exemption was in the personal right of one of the partners, the rule would support two exemptions as well as one. But we feel constrained to hold that case to be, so far, in violation of correct principle. It was no doubt a great temptation in that case, as it has been in this, to support an exemption which might have been, but was not, properly asserted; to make the judgment, “ to do a great right, do a little wrong.” But the view of the learned judge who delivered the judgment in that case is clearly erroneous. He reasons that either of the two partners might have held the whole property *575 exempt; tbat each might therefore hold a moiety of it exempt; and that so the joint suit by both partners for the whole could be sustained. He appears to have overlooked the elementary principle that several rights of several persons cannot be asserted in a joint action at law by all; that partners can maintain an action as such for partnership rights only. The truth appears to be that this question was very much disregarded in view of others in that case, then deemed of much greater moment.

The rule in Gilman v. Williams does not appear to have been since considered in this court, though there are cases which seem to be somewhat in conflict with it. West v. Ward, 26 Wis., 579 ; Wright v. Pratt, 31 id., 99. And we therefore feel at liberty, though with great reluctance, to overrule a case wrongly decided so long ago, and not since affirmed.

We are not unmindful of the beneficent character of statutes of exemption, or of our duty to construe them liberally in favor of their object. Kuntz v Kinney, 33 Wis., 510 ; Jarvais v. Moe, 38 id., 440. But we must administer them according to their letter and spirit, as well as the settled principles and established forms of legál proceedings. We reverse this judgment with great reluctahce, especially because the respondents seem to have been misled by Gilman v. Williams.

Cole, J.

I am disposed to adhere to the rule of Gilman v. Williams, which was long since decided, and which gives the partnership the benefit of one exemption.- That decision is supported by the case of Stewart v. Brown, 37 N. Y., 350 . If the question were a new one in this state, I might conclude to hold with my brethren. As it is, I am constrained to dissent.

By the Oowrt. — The judgment of the court below is reversed, and the cause remanded with directions to the court below to dismiss the complaint.