Giddens v. Williamson

SOMERYILLE, J. — The transfer in writing of the judgment, by the plaintiff therein, Susan Bruce, to Giddens, who-was a defendant in the judgment, and surety for the principal debtor, Williamson, was authorized by section 8418 of the Code of 1876. By virtue of this assignment, the assignee was entitled to assert, in law or equity, any lien or right against Williamson, which the plaintiff could assert. The judgment debt was created in 1866; the garnishment was sued out in December, 1875, and was served on the garnishee, Rogers, on-the same day. The affidavit of exemption was made May 4, 1876, claiming, on the appellee, Williamson’s part, the money then in the hands of the garnishee. It has been repeatedly held by this court, that the act of April 23d, 1873, repealed all previous exemption laws, as to debts contracted prior to the constitution of 1868 ; and the result was, there was no law of force in May, 1876, which allowed any exemptions, as to any debt contracted prior to the adoption of the constitution of 1868. These laws were not revived, until the act of February 9th, 1877, section 27 of which was embodied in section 2844 of the Code. — Lovelace v. Webb, 62 Ala. 271; Carlisle & Jones v. Godwin, at the present term. Furthermore, the extent and quantum of the exemption, whether of real or personal property, being a. claim adverse to a creditor, should have been determined by the law which was in force at the time the debt was contracted, against which the right is claimed, and not by that which was in force when the right was asserted. — Blum v. Carter, 63 Ala. 235; Code (1876), § 2844. Even though the real estate, sold by appellee to Rogers, may have been his homestead, and, as such, exempted from subjection to legal process, — a question which need not here be decided, — when it was sold, and converted into money, by the voluntary act of the owner, and not by legal compulsion, [442] the proceeds, or purchase-money, was not necessarily exempt. . The homestead exemption was thereby waived and gone, and did not follow the money. As was said in Scott v. Brigham, 27 Yt. 561: “ Though a man’s last cow is not subject to attachment, yet, if he sells it on credit, the vendee may be trusteed” — i. e., by garnishment. — Andrews v. Rowan, 28 How. Pr. 128; Wygant v. Smith, 2 Lans. 185; Friedlander v. Mahoney, 31 Iowa, 315; Thompson on Homestead & Ex., §§ 745-46. It maybe otherwise, however, where the sale or conversion is involuntary, or by compulsion under legal process. — Thompson on Homestead & Ex., § 748; Ex parte Hunt v. Tally, 62 Ala. 1; Falconer v. Head, 31 Ala. 513. The judgment is reversed, and the cause remanded.