Richardson v. McCreary & Co.

McCLELLAN, J. This contest of claim of exemptions under Code 1896, § 2046, was in fact and on the merits tried and determined upon the sole issue, viz., whether the original action, in consequence of which the execution against appellants was issued, was ex delicto or ex contractu, and, if the former, no exemptions could, of course, be allowed. A consideration of the original and amended complaint demonstrates, we think, that the action was not ex delicto, but ex contractu; the cause thereof being, as averred, the removal, pending disaffirmance of the sale and redemption thereunder, of timber from the mortgaged premises by the purchaser. If tortious consequences may infect the conduct of one so related to and in possession of real estate, a question unnecessary to be decided, the pleader in this instance clearly elected to waive it, and to attempt to hold the defendants for a liability to satisfy the redemptioner for the waste (if so) committed by the defendants. The judgment is therefore reversed, and, the trial being without jury, a judgment will be here rendered sustáining the claim of exemptions as against this demand, upon the ground stated and controlling the decision below. Reversed and rendered. Tyson, C. J., and Dowdell and Anderson, JJ., concur. ' ■