Grover v. Younie

Ladd, J. 1 On the eleventh day of October, 1897, the plaintiff executed to the defendant Younie, a chattel mortgage covering two horses and other property, to secure the payment of money due. At that time he was a farmer,, the head of a family, and the owner of four other work horses, then in his possession. Shortly after its execution, the mortgage was foreclosed, and the two horses sold, thereunder. The plaintiff’s wife did not sign this mortgage, and because of this omission, he asserts that it was invalid,, under section 2906 of the Code, which provides that: “Noincumbrance of personal property which may be held e-xemptfrom execution by the head of a family, if a resident of this-state, under the provisions of law, shall be of any validity as to such exempt property only, rtnless the same be by rvritten instrument, and unless the husband and wife, if both be living, concur in and sign, the same joint instrument. Butincumbrances on the property sold, given to secure the purchase price,, need only be- signed and acknowledged by the purchaser.” The invalidity, it will be observed, extends to-the exempt property only. As to all other, a mortgage executed by the husband alone is valid. Except in virtue of this statute, the jus dispomndi of exempt property is unrestricted, and the debtor may divest himself thereof regardless of the wishes of his wife or family. Under section. 4008' of the Code, the plaintiff ivas entitled to hold one team of horses as exempt from execution. But he owned three teams, and had the right to say which he would so- claim. In Hays v. Berry, 104 Iowa, 455, we said, “The right to the exemption, is a. personal privilege to be asserted by the debtor.” See sections 4014, 4017, Code. It is only when the husband liasabsconded that this dtity devolves on the wife. Section 4016, Id. And, too, the debtor may waive- his right to exemptions. Richards v. Haines, 30 Iowa, 574; Angell v. Johnson, 51 Iowa, 625; Moffitt v. Adams, 60 Iowa, 44. True, a waiver of the benefit of the -exemption law contained in a contract creating a liability is of nó> validity. Curtis v. O’Brien, 20 [448] Iowa, 376. But this court has never held invalid an agreement by which all property of a kind claimed as exempt is set apart as such, and the right to SO' claim that remaining ■'is relinquished. Nor has our attention been directed to any ■•authority announcing such a mile. A contract of that kind would not defeat the statute, nor render nugatory the bene■fic'al provisions of the exemption, laws. [448] Nor do we think section 4017 of the Code limits the ■selection of exempt property to the time of levying an execution. *This plainly appears from its language: “Any person entitled to' any of the exemptions mentioned in this chapter does not waive his right thereto by failing to designate or select such exempt property, or by failing to object to a levy thereon, unless he fails or neglects to ■do so when required in writing by the officer about to1 levy "thereon.” In Hays v. Berry, supra, we said this statute ' “was enacted to obviate any waiver by reason of the surrender of the property to the sheriff, or failure to object to the levy "by the debtor, in ignorance of his rights, in supposed obedience to one in authority.” It goes no further than to1 mention what shall not amount to1 a. waiver except when demand is made by an officer in writing. It is manifest that this does not preclude the debtor from making a, selection long before an ■execution is issued or judgment rendered, as against an existing debt. The homestead may be selected and platted at any time prior to the. levy of an execution, and it is not perceived why a different rule should pertain to. the selection •of exempt personal property. If the property he will retain as exempt is chosen, thereby the right to1 other property of 'the same kind is inevitably waived. Had the plaintiff owned ‘but one team of horses, then there.would have been no. room ■fox selection, and under such circumstances the statute presented a waiver of the exemption which would .otherwise have been implied from the execution of the mortgage. Evans v. Harvester Works, 63 Iowa, 204. This principle was announced in Slanker v. Beardsley, 9 Ohio St. 590. The [449] statute of that state prohibited the husband from selling, disposing of or in any manner parting with “any personal property which now is or may hereafter be exempt from sale under execution, without hawing first obtained the consent of his wife thereto.” And in event of the violation of the statute the wife wa>s authorized to prosecute an action in her own name for the property or its value. In that case- all the property the husband had might be retained as exempt, and the point made was that articles not absolutely exempt must be •selected before the statute applied, as no one could know until then of his desire to retain them. _ The court said: “Where it appears that the debtor had at the time more personal property than he was entitled to- retain, a serio-us difficulty might arise; but- where, as in the present- case, all that he owns is confessedly insufficient to satisfy the exemption,, no such embarrassment exists. It -is no longer a case of selection, but one of mere demand. lie might insist upon the restoration of the whole, and, if so, a proper construction •of the act of 1857 prohibits him from disposing of it without the consent of the wife.” ' Had the- mortgage covered all the teams, this would have conclusively shown that no selection had been made, and, under the terms of the statute, would have been invalid as to- the team he might choose. Hut here the debtor mortgaged but one of several teams, any one of which he might claim as exempt. The law prohibited him from mortgaging that which may be exempt, and in executing the mortgage on that in controversy, he must have concluded to claim one of the others, and thereby have waived such ■claim to the team so incumbered. In other words, the giving ■of .the mortgage was a selection of those not exempt. Surely it is more in harmony with fair dealing to imply an election to claim one of the other teams as exempt from the execution of the mortgage on that in controversy, than permit him to defeat an instrument, by a subsequent election, which he cannot he assumed to have intended to be worthless. ’ Had ho [450] selected one of the other teams as exempt after this mortgage was given, no one would question its validity. By executing it, he elected to do so, and waived such claim to the two horses in controversy. Our conclusion finds direct support in Harley v. Procunier, 115 Mich. 53 (72 N. W. Rep. 1099, 40 L. R. A. 150). After providing for certain exemptions to a householder, including two cows, the statute-of that state reads: “And any chattel mortgage, bill of sale, or other lien, created on any part of property above described -x- -x- * spau p,e VC)lj¿i unless such mortgage, bill of sale, or-lien, be signed by the wife of the party making such mortgage or lien,” etc. The husband, owning five cows, executed a mortgage on two of them; arid in holding the mortgage valid t-ha court said: “The property belonged to the husband. Tie could not mortgage all the cows he owned, without his wife’s signature to- the mortgage, because under this-statute two would be exempt; but the claim of exemption must necessarily rest with the husband. * * * The husband would also> have the right to determine which two of the five cows he would leave out of the chattel mortgage. The-law gives the wife a remedy only when the husband fails to* claim an exemption. The giving of the mortgage on the two> cows was a selection of-those not exempt.” The contention of the appellee that the prohibition of the statute reaches all' property which may be- selected is answered by the provision making the incumbrance invalid as to- exempt property only.. If the debtor has elected to select other horses, and waived his exemption of those mortgaged, the. latter have ceased to-be exempt, and the instrument, by the very terms of’ the statute, is valid. In view of all its provisions, “may- not” cannot be construed as synonymous with “by any possibility” or “under any circumstances,” but as having reference to the status of the property at the time being. See Gregory v. Kanouse, 11 N. J. Law, 62. The statute confers on the wife no interest other than she had in her husband’s property, nor does it deprive him of the right [451] of selecting that which shall be held as exempt. If he err in judgment or by design, the law gives her no. remedy. If,, under the construction given, he might mortgage all save a-•worthless team, as suggested by the appellee, under that contended for he might also make such a choice thereafter.. Under either he may deprive his family of the benefit of exemptions by sale or gift, or by failure to select property when required to do so. by an officer about to make a levy.. The object of this statute is not to- wrest from the head of the-family the control of exempt property, but to somewhat-restrict it, by requiring the concurrence of the wife before-it can be incumbered. When it ceases to be exempt by the'selection of other property, the statute has no application.— Peveksed. Granger, O. J., not sitting.