Barnes v. Rogers

Walker, J. This was an action of trespass, instituted by Rogers against Barnes, before a justice of the peace, to recover damages for the levy and sale of property, claimed to have been exempt from execution. There is an absence of all evidence in this case, that appellee was at the time the levy was made, the head of a family, and residing with the same. It is such persons alone who have, under the statute, the right to claim this exemption, for the description of property sold on the execution, and for the selling of which this suit was instituted. But even if there was evidence tending to prove that fact, the instructions asked and given for the appellee take the consideration of that question from the jury. They assume that he was either the head of a family, and residing with them, or that he was, independent of that fact, entitled to claim the exemption. If he was within the provisions of the statute, and authorized to insist upon it, that fact was not admitted, nor was it so clearly and incontestably proved that the court had the right to assume its existence.. The first instruction tells the jury that, if they believe from the evidence that defendant levied upon and sold sixty bushels of wheat of "the plaintiff’s, which he had selected as exempt, an.d it was 'suitable to his condition in life, and that he claimed it at the time as -exempt, and offered to surrender other property in satisfaction of-the execution, or that the wheat and other property .not specifically exempt from sale on execution, and retained by him, did not exceed sixty dollars in value, that they should find for plaintiff. This instruction should have been refused, or so modified by the court, before it was given, as to have left the question to the jury, whether he was the head of a family, and the court erred in giving it. The third, fifth, and sixth instructions were erroneous, for the same reason, and should have been refused. They were calculated to, and doubtless did, mislead the jury. The fourth instruction directs the jury that, if they believe from the evidence that defendant levied upon and took any corn belonging to plaintiff, even under a regular execution, and failed to sell it at auction, but appropriated it to his own use, they should find for the plaintiff. This instruction should have been modified, so as to have left it to the jury to determine whether the property was appropriated by agreement between the parties. There was evidence tending to show that it was appropriated to the use of appellant, by the consent of appellee. It is true it was the statement of appellant, but it was called out by appellee, and was thereby made evidence. It also tended to show that the price agreed upon for the com was credited on the execution. Had there been no evidence tending to show such an arrangement, there can be no doubt of the correctness of the instruction. But the instruction, as given, asserts as a principle, that an officer, after levying upon property of a defendant, has no legal right to purchase it of the defendant in execution. Whatever may be said as to the power of a sheriff or constable to purchase from a defendant property levied under execution, and to apply the price agreed upon as a credit upon the debt, and whether he would be liable to the plaintiff if the purchase were for less than its value, can make no difference, as these questions do not arise on this record. This is an action ot trespass, for the wrongful seizure of the property; and the fourth instruction asserts, that it makes no difference whether the execution was regular or irregular, if he failed to make sale, and appropriated the property to his own use. The evidence tended to show that, if it was so appropriated, it was with the consent of the defendant in execution, and at a price agreed upon, and that it was credited upon the execution. This appears by the admissions of the appellant, as proven by the appellee. Then if that were true, it could make no difference whether the levy was regular or not, as, by the subsequent sale of the property to the officer, he waived the right to recoverT&rmv'wrong ful levy. But even if that were not so, the instrpcttom.asserts that he would be liable even if the execution weke- regular,* anqÜ he failed to sell the property at auction. If tlíe execution was.i regular, we perceive nothing which rendered|the leVy fóritipus,^ ant in execution. The failure to sell was authorized by him, and he cannot now be heard to insist that the act was unlawful. Even if it was unwarranted, still it -could not constitute a trespass, and the plaintiff below relied alone for a recovery in that form of action. This instruction was wrong, and should not have been given. The judgment of the court below must be reversed, and the cause remanded. Judgment reversed.