Parker v. Dean

SlMEALL, J.: Two questions are made in the record : 1st, was the levy on the seven barrels of whisky, being sufficient in value to pay the decree, a satisfaction of the same ? The bill states that, on the same day that the levy was made, Mosby, the debtor and owner of the whisky, executed a supersedeas bond, and sued out a writ of error. The effect of that was to stay absolutely the sheriff from further proceeding under the execution. As has been the practice in this state, the execution of such a bond is an' amotion of a levy on personal property, the bond being considered security for the debt, and ample indemnity to the creditor for arresting the action of the sheriff under the' writ. On general principles, a seizure of chattels under fieri facias is only constructively a discharge of the debt. To make such seizure good, the sheriff must take the property into possession, subject to his control; therefore, having a right to the possession, and a qualified property as bailee of the law, he may protect and assure that possession by action of trespass against a tortfeasor, or bring detinue or replevin against him who tortioasly deprives him of possession.: These remedies are afforded him in order that he may obey; the precept of the law, by converting the property into, money for the creditor. What the law aims at is, to realize" the money for the creditor. A levy is constructive payment, to prevent injustice and wrong. If the sheriff has ones [420] taken into possession property, the creditor will not be permitted by a subsequent writ to make another seizure until he has accounted for the first. The first seizure is deemed a payment, in those circumstances, when, if not so regarded, the debtor would be twice deprived of his property on the same judgment. In other cases it is no satisfaction. Banks v. Evans, 10 Smedes & Marsh. 57; Wade v. Watt, Noble & Mobley, 41 Miss. 254. If the sheriff wastes or misapplies the goods after levy, the creditor must look to him for indemnity ; in such case, to the extent of their value, there has been a satisfaction of the debt. If the debtor was never deprived of possession by the levy, or the property was restored by the sheriff, there is no discharge of the debt. We are of opinion that the statements of the bill sufficiently. explain that the seven barrels of whisky were not lost to Mosby, and overcome the inference from the fact of levy that there has been a constructive discharge of the decree. The second and most important question is, whether the land sold and conveyed by Mosby to Parker is subject to the lien of the decree against the former. Whitworth v. Lyon, 39 Miss. 467, placed a construction upon the homestead exemption as defined in art. 281, Code, 529. It was held that exemption depended upon the condition of occupancy, and if that ceases by the act of the debtor, as by' an alienation, the land becomes at once liable to seizure and sale under a judgment against the exemptionist. Stress was laid upon that feature which continued the'exemption after the death of the debtor, “for the. benefit of the widow and family of the deceased, until the youngest child shall become twenty-one years of age.” The estate was upon condition subsequent, and was preserved so long as the condition was kept; but if broken, as it would be by sale and conveyance, then it lost its peculiar privilege, and was open to the judgment creditor. It is very doubtful whether the exemption laws in force at the date of the sale by Mosby to Parker are susceptible [421] of tlie same construction. Material changes have been made in the law since the revision of the statutes in 1857, which tend to free the estate from the stringent conditions imposed by the earlier statutes. The first section of the act of 1865 declares “that the following described property, real and personal, shall be exempt from seizure and sale under execution and attachment, to wit,” etc. After enumerating a schedule of chattels, follows, without use of a period, “also, to the head of a family and a householder, two hundred and forty acres of land, including the dwelling-house,” etc. It will be observed that this language is very different from that employed in art. 281 of the Code The same words are used to describe the exemption of the homestead as are employed in reference to personal property. The continued exemption /for the benefit of the family, after the death of the debtor, .until the youngest child attains' twenty-one, is pretermitted, and, in lieu of it, the third section makes the exempt property descend directly to the widow and children, so that, upon the death of the debtor, his family take by inheritance, and do not hold the real estate as a homestead upon the terms of occupancy, but hold absolutely, and freed from all conditions. It would do no violence to the language to interpret the terms “head of a family” and “householder” as descriptive of the person entitled to the exemption, and the words “land, including the residence and other'buildings,” as descriptive of the real estate, to which alone the privilege applies; for it is the land on which the debtor resides, and none other, that may be exempted. No other person except the head of a family and householder can claim the benefit of the statute. May not these terms in the law of 1865 be fully satisfied by,giving this import to them, rather than as forming elements in the description of the estate which the exemptionist has % This view of the matter is borne out by the consideration of the third section in connection with the first. Further legislation was had in 1867, in the line of still [422] further assuring the estate in the exemptionist, and enlarging his control over it, as the exigencies of himself and family might suggest. Under the law, as in the Code of 1857, the courts had made the estate inalienable, in effect, unless the debtor chose to surrender it to his creditor. If he sold it, his purchaser could not hold against a prior judgment creditor. This was a great hardship. It was a legal compulsion to occupy the same residence, no matter how the fortunes of the debtor and his family might be improved by removing elsewhere. For remedy “ full authority and power was conferred to sell and convey,” and invest the proceeds in another homestead, and the “land so sold shall be exempt from execution and attachment for the debts of the vendor.” The proceeds are invested with immunity for a year, giving to the exemptionist that time within which to make a re-investment. It can hardly be supposed that the law-makers meant, by the words “full authority and power to sell and convey,” to embarrass the title of the purchaser with uncertainty, to make it conditional for a year, subject to be defeated if the re-investment were not made. Such a construction would cripple and circumscribe, and might altogether defeat that clause, “which exempts the property, for the benefit of the vendee.” To hold that the purchaser must see to a re-investment of the money, and, if misapplied, must lose his land by a prior judgment, would be in conflict with the object and spirit of the law. The intent was to enable the insolvent debtor to sell and convey a free and unembarrassed title, in no wise affected and incumbered by judgment liens; and to refer the creditors after the expiration of a year to the proceeds of sale, if in the mean time they were not invested in another homestead. If this immunity had not been thrown around them, creditors might, immediately upon the sale, have proceeded against them. We held in Thoms v. Thoms et al., decided at this term,* that the wife and children had no vested interest in the [423] homestead during the life-time of the husband, he being the insolvent debtor, and that he could by sale break up the homestead, vesting our judgment on the third section of the. statute of 1865, and other antecedent laws. In Smith v. Allen, 39 Miss. 473, the court decided that a. purchaser or donee of the exempt personal property acquired a good title unaffected by the lien of a judgment. The distinction was made between the terms used in the Code in exempting chattels and the homestead ; as we have already remarked, there is no difference made in the statute of 1865. It may be observed that the later decisions in other states incline to the doctrine that the alienor of the exemptionist acquires a good title. Lamb v. Shery, 14 Iowa, 569, decided in 1863. The Iowa statute, like ours, makes a judgment a lien on all the real estate of the debtor, but, after reviewing the conflicting decisions, concludes that the exemption statute excepts and withdraws the homestead from the general law. We are of opinion that the statute of 1867 authorizes the exemptionist to sell and convey the land freed from liability to judgment against him; that the judgment creditor cannot seize and sell the land and defeat the title of the vendee; and further, that his title is not dependent upon a re-investment in another homestead, nor is he chargeable with the duty of seeing to the appropriation of the purchase-money. A right to sell the homestead includes a right to sell a part of it; for non constat, but an adjacent parcel of land may be purchased and annexed to the homestead. The decree of the chancellor is reversed. Footnotes [1] Supra, p. 283.