State v. Boulden

Milijíb, J. delivered the opinion of the Court. This is a suit upon a sheriff’s bond for an alleged failure of that officer, in the levy of an execution and sale of property thereunder, to allow the defendant in the execution the benefit of the exemption law of 1861, ch. 7. The questions, which are presented solely by the pleadings, involve the construction and effect of the first and second sections of that Act. The first section declares, “that one hundred dollars worth of property of each defendant therein, shall he exempt from execution issued on any judgment in any [318] civil proceeding whatever, except on judgments for breach of promise to marry, or for seductionand the second provides, “that each defendant in any such execution may select property, real or personal, to the value of one húndred dollars to he ascertained by three disinterested appraisers to he summoned and sworn by the officer at the time of levying the execution, and the appraisement signed by the appraisers shall he returned with the writ.” This law, passed in obedience to a constitutional requirement, was intended for the benefit of unfortunate debtors and their families, and as such is entitled to a liberal construction. But while'this is so, the Courts in construing and executing it, cannot disregard the rights of creditors nor overlook what is required to be done by the debtor himself in order to secure the privilege thus conferred. As this is the first case in which these provisions of the statute have come before the Appellate Court for construction we have given them a careful consideration, and in our opinion they provide : 1st. That property only shall - be exempted, and the debtor has no right to demand an equivalent in money therefore. This is manifest from the language used. The exemption is of property, and the right to select the property to he exempted is given to each defendant in the execution. Money arising from the sale can he given to him only under the. special provisions of the third section by which it is provided, “that if any property of any defendant, whether real or personal cannot he divided, so as to set apart a portion of it of the value of one hundred dollars, without loss and injury to all parties concerned, then the whole shall he sold, and the defendant whose property is sold shall have one hundred dollars of the proceeds in money, and whether the property can he divided without loss shall he determined by the appraisers ; ■this section only to apply to cases where a single parcel of land, or single article of personal property is levied on, [319] and in all such cases the officer shall not sell unless the property offered, shall bring more than one hundred dollars.” This is the only case in which the debtor is entitled to receive money, and it was under this section that the case of Bramble vs. State, use of Twilley, 41 Md., 435, arose. That case has no application to the questions now to be decided. 2nd. The exemption with the right to select the property to be exempted, is a privilege that may be waived by the party for whose benefit it was intended, and it seems to us clear that the statute contemplates some active interposition on the part of the debtor, in order to entitle him to the benefit of the exemption. It declares that the property “shall be exempt,” but at the same time provides that the debtor may “ select the property,” sought to be exempted. Selection is a privilege conferred upon, and an act to be performed by the debtor. There is nothing in the statute requiring the officer to notify the debtor of the execution and levy, and the only reasonable mode of enforcing the law seems to be this: The sheriff or other officer having the execution in his hands is bound to, and must levy, in obedience to the command of the writ. The defendant must then interpose, claim the exemption and make the selection, and it thereupon becomes the duty of the officer to summon and swear the appraisers. The precise time when this claim and selection should be made is not specified. It might be said in strictness that the terms “ shall be exempt from execution’’ require that the debtor should avail himself of the privilege at the time of the levy, but if this should bo regarded as too narrow a construction, it is plain that there must be some period fixed at which the claim should be made, and after which it cannot be made. The debtor cannot, as we have shown, stand by and permit the sale to go on, and then claim the hundred dollars, in money out of the proceeds. It is as easy for him to make tho [320] demand early as late, and it is no - harsh construction which, requires him to claim the advantage of a statute like this at a time, and in a manner which will do the least possible injury to his honest creditors, and- interpose no delay to the recovery of their just claims. We therefore hold that the claim must he asserted at least before the sale has commenced, and if the debtor waits until the sale has begun his right is gone. It may he true that if an officer should fraudulently take advantage of a debtor’s absence, and levy and sell without giving him a possible chance to avail himself of the privilege, it would afford a good cause of action. Rut such fraud should he distinctly averred and proved, and there is nothing like it in this case. In thus limiting the period within which such a claim must he asserted, we have placed what we deem a just and reasonable construction upon the law, and have followed the decisions of other States upon similar statutes. Without noticing all thé decisions on this subject cited in the briefs of counsel, we content ourselves with a reference to some of the Pennsylvania cases in which a statute of that State very similar to our own has been considered, and a like construction placed upon it. Miller’s Appeal, 4 Harris, 300; Weaver’s Appeal, 6 Harris, 307; Hammer vs. Freese, 7 Harris, 255; Bowyer’s Appeal, 9 Harris, 210; Commonwealth vs. Boyd, 6 P. F. Smith, 402; Diffenderfer vs. Fisher, 3 Grant’s Cases, 30. (Decided 9th December, 1881.) It follows from these views that there was no error prejudicial to the equitable plaintiff upon the demurrers of which he complains, and the judgment must he affirmed. Judgment affirmed.