Blivins v. Johnson

McCay, J. 1. It is true, that the Homestead Act of 1868 does not in express terms provide for its exemption, until it is laid off, but it would, as we think, be a very unfair construction of that Act, so to limit its meaning as that it should not cover a case like the present, when the application was made before the sale, and the sheriff was notified of the fact. In making the application, the husband, in effect acts as the agent of his family. The filing of the application is the commencement of proceedings to have set apart, for the benefit of his family, a certain portion of the debtor’s property. It would be but a slender protection to the family, if this must always be done before the levy. Generally that is the first notice the family receives of the necessity of the provision, and it would be very easy for the creditor to delay the proceedings, if not-commenced before the levy, until after the sale. We think the spirit of this statute covers the case at bar. If the application is made before the sale, though after the levy, and 299 notice is given, the land is sold subject to the homestead. AVe have held at this Term, in the case-of Kilgore vs. Beck, that section 2018 of the Code of still of force. The Act of 1868 does not, in express terms, repeal it, and, as it refers to a situation of things not expressly provided for in that Act, we hold it unrepealed. Under this section if the application be filed, but the homestead be not, for any cause, yet laid off, the land is sold subject to it, if notice be given. 2. In this case it appears that the sale had commenced, several bids had been made, and, when the notice was given, the sheriff postponed the sale. It further appears, that subsequently the whole of the land was set apart, for the benefit of the family of the debtor. It also appears affirmatively, that the sheriff acted in good faith, that he sought legal advice, and acted in the matter honestly. Whilst, as we have-said, the land ought to ha;ve been sold, subject to the homestead, yet, under all the circumstances, we do not think the Court ought to have held the sheriff liable for the debt. The homestead provision of the Constitution of 1868, and of the Act of the Legislature of that year, was a new law. It makes the sheriff a trespasser if' he levies upon the property it exempts. Its construction, as one of the series of legislative attempts to adjust some of the complications growing out of the war, was at that time, extremely uncertain, and we think, it too harsh a proceeding to hold the sheriff liable, under the circumstances. Nobody has been .injured. The Ordinary has determined that the family of the debtor was entitled to all of the land, and there was the clearest proof that the sheriff acted in good faith. We would not lessen the responsibilities of the sheriff. It is his duty to go on, according to law. But here his duty was, to say the most of it, doubtful, and, considering the peculiar character of the law, and the circumstances of its adoption, we think the sheriff was not in contempt. Judgment reversed.