Clark v. Spencer

STONE, J.- There are three systems of homestead and other exemptions in force in this State, dependent on the time the debt or debts were contracted, against which the exemption is claimed. First, when the debt or debts to which the property is sought to be made subject, were contracted before the Constitution of 186S became operative. The extent and value of the exemptions under this class are governed by “ the statute law which was of force when such debt or demand was contracted.” — Code of 1876, § 2844; Code of 1867, §§ 2880 to 2884. Second, when the debt or debts were contracted between the time the Constitution of 1S68 went into effect, and the 23rd day of April, 1873. These are governed by the Constitution of 186S, as to their extent and value. Third, when the debt or debts were contracted after April 23rd, 1873. These are governed in their extent by the act of that date, and by the act approved February 9th, 1877. — Pamph. Acts, 32. By the last named act — § 2844 of the Code — it was declared that in case of debts contracted before the State Constitution of 1868 became operative, the mode, method and remedy for as — 53 — serting, ascertaining and determining the claim of exemptions shall be the same as are provided in chapter 1, title 6, part 2 of the Code, commencing with section 2820. It will be observed that while this enactment makes express provision for determining the question of exemptions against debts falling within the first and third of the above classes, it does not mention the intermediate class — that of debts contracted between the time the Constitution of 1868 went into operation and April 23rd, 1873. an interval of nearly five years. ¥e think harmony of proceedings requires that we should treat this as an accidental legislative oversight; and that after the enactment of the statute of February 9th, 1877, the same mode, method and remedy shall be observed in all cases of asserted homestead and other exemptions. In a chancery suit in which Thomas 0. Clark was complainant and John P. Spencer and others were defendants, instituted in the Chancery Court of Greene county, Clark recovered a money decree against said Spencer at the July term, 1879. The debt on which that decree was recovered was incurred in 1871. The terms of the Greene Chancery Court were then holden on the first Mondays in January and July. — Pamph. Acts, 1878-9, p. 99. On the 22nd day of October, 1878, Spencer, while the chancery suit was pending against him, made a declaration in writing, sworn to, in which he claimed his homestead, consisting of eighty-eight acres, as exempt from execution. The claim was in all respects formal and valid against debts contracted after April 23rd, 1873. The claim was of tire entire tract, without any selection of eighty acres, or a less quantity. This declaration was duly filed with the judge of probate on the day it was made, and was duly recorded. The first execution issued on the decree bore date October 22nd, 1879, and on the same day was received by the sheriff. This execution was made returnable on the first Monday in January, 1880, and was returned January 2nd, 1880, indorsed, “ Returned for an alias.” No steps were taken preliminary to the issue of this execution, nor at any other time under section 2830 of the Code. The second execution was issued and received by the sheriff January 5th, 1880. This was made returnable the first Monday in June, 1880, and, on 12th January, was levied on the lands in controversy. It was returned June 2nd, 1880, indorsed “ levy discharged on claim of exemption filed.” We suppose this has reference to the claim of exemption filed and recorded in October, 1878, noticed above. The third execution was issued December 2nd, 1880, returnable fourth Monday in January, 1881. This execution came into the hands of the sheriff December 3rd, 1880, — 54 — and was returned by him “ No property found,” January 25th, 1881. The fourth execution is very informal and imperfect. Its date appears to be March 17th, 1871. It is made returnable (blank) Monday in (blank). It was received by the sheriff March 25th, 18S1, and, April 14th, 1881, was again levied on the lands in controversy. On the 6th June, 1881, this execution was returned, with the sheriff’s indorsement, “ Returned for alias pluries by order of plaintiff.” On the same day, June 6th, 1881, the fifth execution was issued and received by the sheriff. This execution was made returnable the first Monday in September, 1881. On the day this execution went into the hands of the sheriff — June 6th, 1881 — another attempt was made to claim the property as exempt. Spencer made a new declaration on oath, setting forth that at the time said decree was rendered, he owned and occupied as a residence the eighty-eight acres of land levied on, and he continued to occupy them as a homestead until March 6th, 1880, when he sold and conveyed them to M. J. Allen, who has, ever since, owned and occupied them as a residence ; that the said eiglity-eig9t acres are worth less than two thousand dollars ; and, as the vendor of said Allen, he claims that said lands are exempt from levy and sale under said execution. Mrs. Allen appended to this affidavit her claim to said land, as exempt under Spencer’s homestead exemption, and added to it the following clause : “If she, the said Allen, is entitled under the exemption law to only eighty acres of said land, then she selects and claims all of said land except eight acres off the north end of said eighteen acre piece, described as lying in the south end of the east half of the southeast quarter of section 33, township 23, range 1, east.” This claim was immediately lodged with the sheriff, and was the first time a selection was made limiting the quantity to eighty acres. The sheriff disregarded this claim, and on the first Monday in August sold the property, and Clark became the purchaser, receiving the sheriff’s deed. He thereupon instituted this suit, which is a statutory real action for the recovery of the property. Leaving out of view, for the present, the question of homestead exemption, it can not be gainsaid that the plaintiff acquired and retained a lien on the land in controversy from the time the first execution went into the hands of the sheriff, October 28th, 1879, until the sale was made by the sheriff, August, 1881, unless the return of what we have called the fourth execution, made as it was by order of plaintiff, broke the continuity of the lien. Excluding that execution ehtirely from the file and from consideration, there was not a lapse of an entire term between the return of one execution, and the receipt of another by the sheriff.' — Code of 1876, § 3211. It — 55 — is, however, contended for appellant that the plaintiff destroyed his lien in this case, by himself ordering the return of the execution. This is a misapprehension of the principle, which rests for its support on the voluntar}' interference of plaintiff, by which delay is granted to defendant.—Albertson v. Goldsby, 28 Ala. 711; Carlisle v. Godwin, 68 Ala. 137. The execution in this case was grossly irregular and' imperfect, and would have been quashed on motion. It is shown, too, that indulgence or delay was neither granted nor contemplated ; for the very day on which the execution was returned by order of plaintiff, another one was issued and placed in the bauds of the sheriff. There is nothing in this objection. We have shown above that before the plaintiff acquired any lien in this case by placing execution in the hands of the sheriff, Spencer, as whose property the lands were afterwards sold, had made his declaration in writing, and had it recorded, claiming the exemption of the said eighty-eight acres of land, as his homestead. There was no contest of the validity of that claim, as provided by section 2830 of the Code. The plaintiff procured the levy to be made, and the sale and conveyance to be perfected, without making any oath, or giving any bond, to contest the first claim, and without filing any contest to the second claim. In fact, no contest was ever had of the validity of either claim, as provided in the act approved Feb. 9, 1877. Each of these claims of exemption was offered successively in defense of this action, and each was, in effect, ruled to be insufficient. Sections 2828 and 2829 of the Code of 1876 provide for a declaration of claims of homestead, exempt from legal process, and for having the same recorded. And section 2830 declares that “ after tne filing of such declaration and claim for record, no excution, attachment or other process for debt shall be levied on such property, unless the plaintiff, his agent or attorney, contest the validity of such claim in whole or in part,” in the manner pointed out in said section. The claim interposed in this case was sufficient in form, and, so far as we can perceive, was every way valid and formal, against debts contracted after April 23d, 1873. It was not, then, void, but was insufficient against debts contracted before that time. As to the debt on which plaintiff obtained his decree, being contracted between the time the Constitution of 1868 went into effect, and April 23d, 1873, it was insufficient, in that it did not select and designate which eighty of the eighty-eight acres, the occupant claimed. When the claimant of exemption attempts to conform' to sections 2828 and 2829 of the Code, he should be governed, in the quantity and value of property he selects, by the date of the debts against which he claims exemption. — 56 — Randolph v. Little, 62 Ala. 396; Block v. Bragg, 68 Ala. 291. And if he owes debts falling within more than one of the classes, then he should, in his declaration and claim, specify what property he selects under each one of the classes. We do' not' mean to say he should file a schedule of his debts. Sufficient if he say, as to debts contracted between the time the Constitution of 1868 went into operation, and April 23d, 1873, lie selects and claims the following: (not exceeding eighty acres); and so on, for each class of debts he may owe. The declaration and record of claim in this case, being only applicable to debts contracted after April 23d, 1873, was it necessary to controvert that claim before having execution levied ? The declaration, as we have shown, was not void. It was valid as to one class of debts. To maintain Uniformity and harmony of practice, we hold that before having the property levied on, the plaintiff should have contested the same, as provided in section 2830 of the Code. This preliminary step should be taken, whenever the declaration, claim and record are valid and sufficient as to any class of debts, against which exemptions are allowed. The execution should not have been levied in this case, and consequently the levy and sale were irregnlar. But we do not think they were void. They were only irregular. On timely application the court would have arrested the sale and quashed the levy ; - and would set aside the sale on timely application properly made. It can not be declared void on collateral attack.—Masters v. Eastis, 3 Por. 368 ; Abercrombie v. Connor, 10 Ala. 293 ; Ware v. Bradford, 2 Ala. 676; Mobile Cotton Press v. Moore, 9 Por. 679 ; McCaskell v. Lee, 39 Ala. 131. To give harmony to our various rulings, and to give effect to the exemptions secured by our Constitution and statutes, we feel constrained to hold that the second claim of exemptions should have been allowed to prevail, if not successfully controverted. We have held in various forms that exempt property is not subject to legal process ; and that any attempt to alienate the homestead, that does not conform to the statute, is so far inoperative, that, without prior selection, a subsequent conveyance which conforms to the Constitirtion and statute, will vest in the second grantee a good title as against the first. So . we have held that in proceedings against sheriffs for not making money on executions, it is a sufficient defense if he show affirmatively that the property, for not selling which he is sought to be made liable, was, in value, within the limit the statute permits the defendant to claim as exempt. This, when there has been no claim in fact asserted. So, when a debtor has aliened his property without valuable consideration, even though there has been no formal claim of exemption, if the — 57 — property was within the statute, and could have been claimed as exempt, a creditor can not complain of this as fraudulent, for the obvious reason that it simply disposed of property he could not subject, and therefore the conveyance did him no harm.—McGuire v. Van Pelt, 55 Ala. 344; Fellows v. Lewis, 65 Ala. 343 ; Wilson v. Brown, 58 Ala. 62 ; Daniels v. Hamilton, 52 Ala. 105 ; Cook v. Baine, 37 Ala. 350 ; Bell v. Davis, 42 Ala. 460 ; Thompson on Homestead, § 646 ; Union Bank of Tenn. v. Benham, 23 Ala. 143 ; Steele v. Moody, 53 Ala. 418. True, if the defendant knowingly permit his property to be seized and sold, without interposing his claim to its exemption, he will be held to have thereby waived his right to claim, and would not be heard afterwards to complain. This rests on the principle that exemption is a privilege which may be waived, and is waived if not properly asserted. There is no incompatibility between this principle, and that stated above.—Martin v. Lile, 63 Ala. 406; Sherry v. Brown, 66 Ala. 51; Block v. George, 70 Ala. 409 ; Henderson v. Tucker, Ib. 381 ; Gresham v. Walker, 10 Ala. 370 ; Bell v. Davis, 42 Ala. 460. We have said the levy in this case was irregular, and the sale made was also irregular ; and each should have been quashed, if moved for in time. Whether it is now too late to make such motion, we do not determine. Nor do we doubt that if a sheriff refuse to receive a claim of exemption, properly interposed, and to take the necessary steps prescribed by the Code, §§ 2834 et se]., he may be coerced to do so by mandamus. What we do decide is, that these were mere irregularities which can not be inquired into, or set aside collaterally. The levy, sale and conveyance devested the legal title, and put it in Clark, the plaintiff. He, therefore, was armed with a title which would support ejectment, and the irregularities mentioned above were no defense to that action, while the sale and conveyance stood. See'authorities supra. Lest what is said above may be misconstrued, we will add that the principles here declared are applicable to suits, where there have been a levy, sale and conveyance under execution, not preceded by any valid claim of exemption, filed and acted on. These steps being taken, and not set aside, we hold a purchaser has such legal title as will prevail at law. A different rule may, and probably would prevail, if there had been no levy and sale, and therefore the statutory provisions for interposing and contesting exemption claims can not be made to apply. If the question were raised on the sufficiency of a conveyance to carry the title to a homestead, and suit were brought based on such conveyance, we are not prepared to say the homestead might not then be selected from a larger tract, — 58 — and a defense to the action, pro tanto, made good. This question does not arise in this case. We need not consider the various rulings of the circuit court. None of them did, or could do the appellant any injury; for the defendant had nothing he could urge against the title shown by plaintiff. Affirmed.