Lawton v. Bruce

AppletoN, J. — On Aug. 14, 1849, an Act, c. 135, “to exempt homesteads from attachment and levy or sale on execution,” was passed, which by its terms was “ to take effect from and after the last day of December next.” By this Act, real estate to the value of five hundred dollars was protected from seizure and sale, or levy on execution against its owner. [487] The Act of 1849 was repealed the following year by stat. c. 207, by the first section of which lands and buildings not exceeding five hundred dollars in value were exempted from “ seizure or levy upon any execution issued on a judgment recovered for any debt contracted jointly or severally, after the first day of January in the year of our Lord one tho us- and eight hundred and fifty,” which was the day when the Act repealed was to have taken effect. The design of this section, though varying from the law of the preceding year, which had exempted the real estate of the debtor claiming the benefit of that Act from levy or sale on execution “ on any debt contracted after the passage” of the Act, was apparently intended to preserve and continue the rights acquired by the first statute and which but for this provision might have been lost. It is provided, by c. 207, § 4, that the head of any family or any householder, wishing to avail himself of the benefits of this Act, may file a certificate, by him signed, declaring such wish and describing the property, with tho register of deeds in the county whore tho same is situated; and upon receiving the fees now allowed for recording deeds, such register shall record the same in a book kept by him for that purpose; and so much of the property in said certificate described as does not exceed the value aforesaid, shall bo forever exempt from seizure or levy on any execution issued on any judgment recovered for any debt contracted jointly or severally by the 'person signing said certificate, after the date of the recording thereofand the record in said register’s office, shall be prima facie evidence that the certificate, purporting to be there recorded, was made, signed and filed, as appears upon such record, and “ upon being recorded as aforesaid, the property as described in the first section of this Act shall be exempted within the provisions thereof.” By this section it is apparent that all wishing to avail themselves of the provisions of this Act must file their certificates, and that unless this be done, they cannot claim the exemptions thereby allowed. The statute provides for [488] two classes of exemptions; by § 1, from debts contracted after Jan. 1850, and by that in § 4, from debts accruing after tbe date of tbe recording of tbe certificate. But tbe record in each case is required for tbe protection of tbe public. The certificate should express clearly the exemption claimed, so that tbe public may be advised of tbe class of demands from which the estate is to-be protected. If the debtor claims under § 1, “ tbe property as described in the first section of this Act shall be exempted within the provisions thereof,” otherwise, the date of the recording of the certificate is the limit of indebtedness to which the estate is exposed. In this case, the defendant owned the land in dispute on the 1st of Jan. 1850, and would have been within the provisions of § 1, had he retained his title and filed his certificate. But on the 11th of Aug. 1851, he conveyed the land to William W. Bruce, and by that conveyance, it at once became liable to attachment, for the right of exemption conferred by the statute is not transferable. The defendant, upon the conveyance of the estate, became divested by his own act, of all right to assert any of the privileges conferred by statute. On May 6, 1852, the defendant again acquired title by a conveyance from William W. Bruce, and on the next day made his certificate, as required by statute, which was recorded on May 8. His rights, consequently, originated under the last conveyance, and are limited by its date. But the debt upon which the judgment was rendered, and on which the execution issued upon which the plaintiff’s levy was' made, accrued prior to the date of the deed under which the defendant now claims. He cannot, therefore, claim exemption under § 4, as the judgment was recovered on a debt contracted prior to the recording of his certificate. By the agreement of parties, as the defence is not established, a default must be entered. Defendant defaulted. Teítney, J., toolc no part in the opinion, not being present at the argument.