McCluskey v. McNeely

The Opinion of the Court was delivered by Caton, J.* Upon a judgment in the Morgan Circuit Court, an execution was issued against McNeely on the 3d of July, 1845, and delivered to the appellant, who was a deputy sheriff of Morgan county, and by him levied upon eight acres of standing corn of the defendant’s, which was advertised and sold by the plaintiff to one Ray, to whom, by the direction of the agent of the plaintiff in the execution, a credit was given for the purchase money, and the amount for' which the corn was sold was indorsed on the execution as so much made. Between the time of the delivery of the execution to the plaintiff and the sale, the sheriff, whose deputy the plaintiff was, died. A short time before the sale took place, the defendant notified the deputy, verbally, that he claimed the corn as exempt from execution under the statute, and forbid the sale. The evidence clearly showed that the defendant had not as much property as the law allows him exempt from execution. The case was tried by the Court without a jury, and judgment rendered for three times the value of the property levied upon and sold. This is assigned for error. Several objections have been urged as reasons why this judgment should not be sustained. None of which we think are tenable. We will first inquire whether the authority of the deputy under the execution ceased upon the death of the sheriff. By the Law of 1825, it is provided that “the power of the deputy sheriff to act shall not be taken away by the death of the sheriff; but such deputy may do all acts and things which he could have done, had the sheriff remained in full life, until his powers be superseded by the appointment of a principal sheriff.” It is insisted that this law is repealed, by implication by the law of 1827, which provides that “in case of the death of the sheriff, the coroner shall act as sheriff.” We do not think that such is the proper construction of this law. Ever since the passage of this law, the practice has been otherwise, and such a construction would work the greatest inconvenience. There is nothing in the latter Act which is incomp.atible with the former. Both provisions are incorporated into the ninety ninth chapter of the Revised Statutes, the latter in the eighteenth section, and the former in the twenty sixth section, and this at least amounts to a legislative construction. It is sufficient to say that we cannot agree with counsel in the constitutional question raised. The deputy, then, having full power to act, is responsible for the abuse of those powers. But even if he were only an officer de facto, and had not a strict legal right to the office, his acts would still be good as between third persons, and his liability would be the same. It is objected that the notice of the claim of exemption by the defendant should have been in writing, and before the day of sale. The evidence shows that the defendant was the head of a family, and all the property he had in the world was not worth more than twenty two dollars; and consequently the whole of it was exempt from execution, if suited to his condition in life, as we are convinced that the corn was. Indeed, when we remember that he had a wife and five children to provide for, as the case shows, we cannot doubt that it was not only suited to his condition but necessary for his support. The statute does not require in express terms, that any notice whatever should be given, yet, inasmuch as a selection has to be made by the debtor, a notice of such selection must necessarily be given to the officer. But that selection and notice may as well be by parol as in writing. If the officer, as it is his duty to do, notifies the defendant before the levy is made, that he has the execution and is about to levy, the selection should be made before the levy; and when, as in this case, all of his property is exempt from the execution, he may of coarse select and retain the whole. If, however, the officer does not notify the party before the levy, the selection may be made and notice given at any reasonable time before the sale. The notice in this case was given on the same day, and before the sale, and in sufficient time. It does not even appear that the debtor knew of the levy before the day of sale. It has been urged that the defendant is not liable, because the money was not paid by the purchaser. The sale was notwithstanding good. If the officer chose to give a credit to the purchaser, it is still a satisfaction of the execution to the amount of the sale, especially when done with the concurrence of the plaintiff in the execution, as was the case here. I confess my inability to perceive why the defendant, who happened to live in another county, was not as much under the protection, and entitled to the benefits of the statute as if he had resided in Morgan county, where the levy was made. That objection cannot prevail. We are not only satisfied with the judgment in this case, but think it is one where the propriety of the law is made most manifestly to appear. The judgment is affirmed with costs. Judgment affirmed. Footnotes [*] Justices Thomas and Denning did not sit in this case.,