Moxley v. Ragan, &C.

• Decision Date: 14 March 1873
• Citation: 73 Ky. 156
• Court: Kentucky Court of Appeals
• Parties: Moxley v. Ragan, &c.

Page 156

73 Ky. 156

Moxley v. Ragan, &c.

Court of Appeals of Kentucky.

March 14, 1873.

APPEAL FROM MONTGOMERY CIRCUIT COURT.

THOMAS TURNER, WM. H. HOLT, For Appellant.

APPERSON & REID, C. BROCK, For Appellees.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

The appellant, Josiah Moxley, being largely indebted, executed a conveyance to Hugh Britton in trust of all his estate, consisting of land and personalty, for the payment of his debts, reserving to himself by the terms of the deed such property only as was by law exempt from execution. The trustee proceeded to sell the property by reason of the trust, having first set apart to the appellant such articles of property as were by law exempt from sale, the latter being at the time a housekeeper with a family and entitled to the exemption. The appellee (Maupin), a creditor of the appellant, holding his note for five hundred and thirty-three dollars, upon which he obtained a judgment, had his execution issued and levied by the sheriff on this exempted property. The sheriff refusing to sell, he was indemnified by Maupin, and required to make the sale. Before the sale took place this action was instituted by the appellant to recover the property.

The note upon which the judgment was obtained is as follows:

                $533.38.             MT. STERLING, KY., Nov. 1, 1871
                

"One day after date I promise to pay to the order of Daniel Maupin five hundred and thirty-three dollars, without defalcation or discount, for value received, and without any relief whatever from the appraisement, exemption, or valuation laws of the state of Kentucky; to bear ten per cent interest from this date. (Signed)

                                                JOSIAH MOXLEY."
                

The only question presented by the record is, can a debtor by the execution of a note containing such stipulations waive the benefit of the law exempting certain property from execution so as to preclude him from afterward asserting his right to it. It is well settled that a debtor may sell his personal property exempt from execution either in payment of a debt or for any other valuable consideration, so as to vest in the purchaser the absolute title, or even to mortgage it, which is in effect a sale, to secure the payment of a debt.

There is an essential difference, however, between an executed contract, by which the owner is divested of title, and an executory agreement by which the debtor merely promises that in the future he will not take advantage of or claim the benefits of a particular statute. Executory agreements are generally enforced, and as much obligatory on parties as if in fact executed; but there are exceptions to this general rule. No one in this state is entitled to the benefit of the exemption laws but a housekeeper with a family, and the legislature certainly intended by the enactment of such laws to provide more for the dependent...