Emerson v. Smith

The opinion of the court was delivered, by Agnew, J. This record presents but a single question, which is, whether a fraudulent concealment of other property liable to execution for the purpose of hindering and delaying the creditor by preventing a sale of the property levied on, is a bar to the debtor’s right to retain the property seized under the Exemption Law ? Taking the result of the authorities as our guide, we must give an affirmative answer : Huey’s Appeal, 5 Casey 219 ; Gilleland v. Rhoads, 10 Id. 190 ; Diffenderfer v. Fisher, 3 Grant 30 ; Stevens’s Ex’rs. v. Becker, 2 Wright 190; Smith v. Emerson, 7 Id. 460. It has been repeatedly said that the Exemption Law was designed for the honest poor, not the roguish. It is not independent fraud, however, but such as affects the execution of the creditor, that defeats the debtor’s claim. By the Exemption Law, property to the value of $300, and no more, shall be exempt. But if a debtor can hide his property, or keep it under cover, so as to conceal its knowledge from the officer, and thereby assist himself to retain that which he finds it convenient or necessary to keep openly, his fraud bears directly upon the latter, for it is because the former is unknown, or out of the way, the latter is suffered to remain with him. But it is argued that Freeman v. Smith, 6 Casey 264, decides that such fraud is no bar to the action, and simply mitigates the damages. The point decided there was, that evidence of the fraud was rightly admitted, because it at all events mitigated the damages; and because there was no exception to the charge of the court below ruling it to be a bar, the error could not be reached. The reasoning of the judge delivering the opinion was to the effect that it was no bar to the action. We cannot concur in what was there said. When this case was here before (7 Wright 456), the distinction between the effect of the fraud to reduce the plaintiff’s claim to nominal damages, and its operation, as a complete bar, was disregarded ; and our brother Woodward, delivering the opinion, treated the former as substantially answering to the latter. Nor can we well discover how fraud can be used to mitigate the damages and not to bar the action. [94] When the sheriff levied his execution on the horse, Emerson either had a right to retain him as exempt, or he had not. If he had the right, because the fraud was no bar, then the horse remained his, and could not be seized. To seize him. was to take property of so much value, and that value is the measure of his damages, because it represents his right. Being his, no power can deprive him of it, compensation being the duty even of the state when she asserts her highest powers. If the fraud is no bar, it is because it is independent — because its taint does not run in the veins of the transaction and corrupt its current, — certainly it would be an unheard-of doctrine to be announced that a party may by mitigation be deprived of redress for an admitted wrong, because in his other dealings he is-a rogue. But if the fraud do inhere in the very transaction itself, by its intended effect preventing the collection of the debt, then the fraudulent debtor can claim no right of exemption under the law, whose conceded purpose only “ meditated benefit for the honest poor. Rogues and cheats were not the objects of its bountyFreeman v. Smith. Nor do I think the law is so absolute in its command that a sheriff dare not resist every claim for exemption, however baseless it may be. That in making a levy he acts at his risk is familiar to all. A stranger may claim property in the goods or a pledge, or bailee assert his qualified right, and the officer proceeds at his peril. It was to lessen his danger the Interpleader Act was passed. There are numerous decisions under the Exemption Law itself, where the officer has proceeded in disregard of the debtor’s claim, and has been sustained. Justice Woodward well remarked, in Diffenderfer v. Fisher, 3 Grant 30 : “ The plaintiff has a right to try the title, which he can do only by a sale, and when he indemnifies the officer and takes the risk of the proceeding, he is not to be baulked by such a shuffle as was attempted here.” See also Gilleland v. Rhoads, 10 Casey 187; Rosenberger v. Hallowell, 11 Id. 369. The judgment is affirmed.