Shepherd v. . Murrill

MerriMON, J. The defendant insisted that the plaintiff ought to have demanded that his personal property exempt from execution should be appraised and laid off to him at the time of the levy upon his property, or within a reasonable time thereafter, before the day of sale; and that inasmuch as he did not make such demand until the day of sale, he had -waived his right to make it. The court held that there was no such waiver, and we concur in its judgment. The constitution provides that, “ the personal property of any resident of this state, to the value of five hundred dollars, to be selected by such resident, shall be, and is hereby exempted from sale under execution, or other final process of any court, issued for the collection of any debt.” Art. X, §1. *210 The statute giving practical effect to this provision of the constitution, provides that, “ whenever the personal property of any resident of this state shall be levied upon by virtue of any execution or other final process, issued for the collection of any debt, and the owner, or any agent or attorney in his behalf, shall demand that the same, or any part thereof, shall be exempt from sale under such execution, the sheriff or other officer making such levy shall summon three appraisers,” &c., to appraise and lay off the exempted property. The Code, §507. There is here no provision in terms or effect, that makes it imperative on the execution debtor' to demand the appraisement and laying off of the exempted property; nor is there anything in the nature of the demand or the duty of the officers charged with the execution in relation thereto, that renders it necessary that it shall be made before the day of sale. The complete capacity to make the allotment would always remain until the day of sale, and we can see no reason, certainly no substantial reason, why it might not be done on the day of the levy, or on any day before the sale, or on that day. It might happen that the execution debtor could not make the demand earlier than the day. of sale. He might be absent at the time of the levy, and a variety of circumstances might exist that would reasonably delay the demand. The language of the statute is “whenever the personal property of any resident of this state shall be levied upon,” &c., that is, at any time, while it is levied upon, and the levy continues to the day of sale. The law favors the homestead and the personal property exemption, and gives all reasonable opportunity for the assertion of the right thereto; and statutes must be liberally construed to this end. These exemptions are not intended simply to serve the noble purpose of beneficence toward the needy and unfortunate, but as well the greater purpose of government in identifying every family, every citizen, as much as practicable, with the soil of the state, thus giving greater strength, permanency and dignity to citizenship, and enhancing the power and greatness of the state. *211 It is wise policy in government to identify its people with its soil and establish permanent homes for families and individuals. This is essential to a steady, orderly and reliable population, and the accumulation of wealth, power and respectability. These exemptions have been deemed so important as to be made a feature in the government of the state. They are established and protected by constitutional provisions, and the statutes in execution of these provisions arc thorough and strict in their details, imposing heavy penalties and liabilities upon such officers as neglect or refuse to discharge their official duties in regard to them. We cannot doubt that a just construction of the statute gives the execution debtor the right, at any time, after the levy upon his property and before the sale thereof, to demand that his personal property exemption shall be ascertained. In this case, it is very apparent that the plaintiff did not intend to waive his right. ' He repeatedly notified the sheriff, that if he sold his cotton he would sue him, and at last consulted legal counsel as to his rights, and under advice, gave the sheriff written notice of his demand. The court properly refused to give the jury the instructions prayed for. In this there is no error, and the judgment must be affirmed. No error. Affirmed.