sales of the attached property, previously made, or from any debts or credits collected by him, or as much thereof as may be necessary to satisfy such execution; and if a balance still remains due, the officer must sell all the attached property, real or personal, or so much thereof as may be necessary. But where the judgment is in rem, as against a non-resident or foreign corporation, and the service is made by publication or in other modes provided by statute, and the judicial power of the court attaches only by virtue of the seizure of such property within its jurisdiction, its judgment being in rem or against the property, and having no force or effect over any property except that seized on the attachment, which is a condition precedent to the adjudication in such causes. No execution can issue after judgment for the sale of any other property than that seized; the attachment being merely an auxiliary writ by which the plaintiff may hold the property until such time as by order of the court it may be sold, and the proceeds of such sale be applied to the satisfaction of his judgment. Where the defendant in the attachment dies after the issuing of the writ of attachment, and before judgment is rendered, the right of an execution is with the court in which such action is pending; and the execution should be indorsed with directions to levy only upon the property attached.1 $91 a. The teste of a writ is not conclusive as to the time of issuing. The real time may be shown by parol evidence.2 Thacher v. Bancroft, 15 Abb. 51. Allen v. Smith, 7 Halst. 150. Pr. 243. Harrell v. Martin, 6 Ala. 587. * Lrown v. Van Duzer, 10 John, CHAPTER IV. PROPERTY EXEMPT FROM EXECUTION. Personal Property. - Homestead. - Exemption when allowed. a Homestead. $92. ALL the property of a defendant or party against whom the execution has been issued is liable to seizure and sale by the officer to whom the writ issues, except such as the common law or the various state laws exempt from forced sale; that is, a sale made by virtue of a legal process.1 And such property as a party cannot sell himself, cannot on exccution be legally sold for his debts.2 The common law was very niggardly of these exemptions; it allowed only the necessary wearing apparel of the debtor, and if he had two gowns, the officer might seize and sell one. By the wise and beneficial statutory provisions of the American states, laws have been enacted upon grounds of public policy and humanity, intending to relieve and mitigate the consequences of the thoughtless 1 102. Sampson v. Williamson, 6 Tex. Robb v. Beaver, 8 W. & S. 111. Doe v. Prarratt, 5 T. R. 652. Gentry v. Wagstaff, 3 Dev. 270. French v. Mehan, 56 Penn. 286. McCurdy v. Canning, 64 Penn. 39. ness and improvidence of mankind, exempting certain personal property of limited value, or of the kind necessary for the support of a family; and in almost every state, with but few exceptions, a residence or homestead has been by statute reserved from such sales. "The legislatures meant in the passage of these laws to confer this privilege of exemption on each of those little communities called families ;" and they apply only to householders who have families for which they provide. "The exemption laws are designed as a protection to poor and destitute families, and the forlorn and destitute condition of the family, in the absence of the husband and father, and gives them a peculiar claim to the benefits of these statutes, so that they may not be stripped of all means of support and cast off as paupers on the community." These statutes, being based on just views of humanity, should have a liberal construction and application to cases of unquestioned indigence. This rule of construction is followed in many states, while in others, such laws, being in derogation of the common law exempting the debtor's property from the payment of his debts, are not extended to objects not expressly therein designated. In Pennsylvania the exemption is allowed only on contract debts, but are allowed in all cases in other states. Exemption laws do not enlarge the operation of executions, nor obstruct legal remedies. 1 $ 93. The right of exemption is an incident of ownership as long as the owner, who is an inhabitant of the state, chooses to exert it, and if the property is within the control of the court it exists. In order to claim and derive the benefit of the 1 Knettles v. Newcomb, 22 N. Y. 252. * Webb v. Brandon, 4 Heisk, 285. Vogler v. Montgomery, 54 Mo. 577. Good v. Fogg, 61 Ill. 449. Connaughton v. Sands, 32 Wis. 387. Shaw v. Davis, 55 Barb. 389. Stewart v. Brown, 37 N. Y. 350. Gilman v. Williams, 7 Wis. 329. Bevan v. Hayden, 13 Ia. 122. Kuntz v. Kinney, 33 Wis. 510. 3 Crilly v. Sheriffs, 25 La. Ann. 219: Guillory v. Deville, 21 La. Ann. 686. Ward v. Kuhn, 16 Minn. 159. Olson v. Nelson, 3 Minn. 53. Lane v. Baker, 2 Grant Cas. 424. Commonwealth v. Dougherty, 8 Phil. (Pa.) 366. 5 Dellinger v. Tweed, 66 N. C. 206. 7 Howard v. Jones, 13 Am. Law Reg. (N. S.) 457. statute, the debtor must bring himself and his property within its provisions, and prove the facts affirmatively.1 Being a statutory privilege of which the debtor alone can avail himself, he may, if he chooses, waive it, and allow a levy and sale of his exempt property.2 But the assent of the wife to a levy, in the absence of her husband, is not binding upon him. Nor is the execution of a delivery bond a waiver of the illegality Nor does a waiver in favor of a junior judgment creditor give him a preference over other creditors in whose favor there is no waiver, unless the waiver is in the instrument creating the contract obligation. Nor is exempt property rendered subject to levy and sale by general creditors in consequence of being mortgaged; and to property mortgaged before the passage of the exemption law it does not apply; or where the value of the property of a single article exceeds the amount allowed by statute. In such cases the property is sold by the officer, and out of the proceeds the debtor receives the amount of money equal to the allowance of the exemption.10 Nor is the 1 Calhoun v. Knight, 10 Cal. 393. Briggs v. McCullough, 36 Cal. 542. Griffin v. Sutherland, 14 Barb. 456. Davenport v. Alston, 14 Ga. 271. Lines's Appeal, 2 Grant Cas. 197. Danis v. Prosser, 32 Barb. 290. Tuttle v. Buck, 41 Barb. 417. Hill v. Johnson, 29 Penn. 362. Corp v. Griswold, 27 Ia. 379. Swan v. Stephens, 97 Mass. 7. 2 Bowman v. Smiley, 31 Penn. 225. Lines's Appeal, 2 Grant's Cas. 197. Smiley v. Bowman, 3 Grant's Cas. 132. Beegle v. Wentz, 55 Penn. 359. Chamberlain v. Lyell, 3 Mich. 448. Laucks's Appeal, 24 Penn. 426. Case v. Dunmore, 23 Penn. 93. State v. Melogue, 9 Ind. 196. Mickles v. Tousley, 1 Cow. 114. Earl v. Camp, 16 Wend. 562. Smith v. Hill, 6 Barb. 656. Waldo v. Gray, 14 Ill. 184. Hughes v. Farrar, 45 Me. 72. 10 Welsh v. Horie, 36 Ill. 238. Morgan v. Stearns, 44 Vt. 398. McDonald v. Vandal, 43 Ill. 297. Dearing v. Thomas, 25 Ga. 233. Fogg v. Fogg, 40 N. H. 282. Pittsfield v. Hawks, 4 Allen, 347. Bennet v. 3 Woodward v. Murray, 18 John, Child, 10 Wis. 362. Maxey v. Loyal, 400. 38 Ga. 531. exemption lost by the temporary absence of the debtor.1 A voluntary surrender of exempt property, and without claiming it as such, estops the debtor from claiming it afterwards.2 $94. As the right of exemption is for the sole purpose of protecting families from want and misfortune, and as a guard against their being impoverished by stripping them of the necessaries of life and the means of support, the privileges and benefits conferred by the statutes to the unfortunate debtors are, as a matter of necessity to their creditors, confined and extended only to such classes as have families de. pendent upon them for support, and are mentioned as heads. of families or householders. Prima facie all of a debtor's property is liable to seizure and sale on execution, unless specifically exempted therefrom by statute or some rule of the common law. Therefore where a debtor desires to obtain the privileges thus accorded, and claim the benefit of these salutary enactments, it is necessary that he brings himself and property within some statute by proper proof, showing that he is a resident or inhabitant of the state wherein he claims the exemption; that he is a householder or head of a family, that is, having a family dependent upon him for support. While in Texas all inhabitants, married or single,5 and in Pennsylvania bachelors, are entitled to it. But there is no exemption in actions ex delictu in Pennsylvania. A "family," in the exemption laws, is a man and wife who live together, although they have no children, and includes such persons as constitute Richards v. Haines, 30 Ia. 574' McKenzie v. Murphy, 24 Ark. 155. * Sears v. Hanks, 14 Ohio S. 298. McKenzie v. Murphy, 24 Ark. 155. Boykin v. Edwards, 21 Ala. 261. Abercrombie v. Alderson, 9 Ala. 981. Succession of Norton, 18 La. Ann. 36. Bonnell v. Dunn 4 Dutch. 153. |