Commonwealth v. Lay

• Citation: 75 Ky. 283
• Parties: Commonwealth v. Lay.
• Decision Date: 21 September 1876
• Court: Kentucky Court of Appeals

75 Ky. 283

Commonwealth v. Lay.

Court of Appeals of Kentucky.

September 21, 1876

APPEAL FROM KNOX CIRCUIT COURT.

THOS E. MOSS, Attorney General, J. H. TINSLEY, For Appellant,

CITED

8 Bush 220, Commonwealth v. Cook.

JOHN &amp J. W. RODMAN, For Appellee,

CITED

1 J. J Mar. 555, Bell v. Commonwealth.

OPINION

PRYOR JUDGE

This was a proceeding in behalf of the commonwealth to recover of the appellee on his bond as sheriff of the county of Knox for failing to collect various executions issued in favor of the state against Henry Sibert and others, and returned by the sheriff no property found.

The right of recovery is based upon the allegation that the defendants had ample property in the county upon which the executions could have been levied and full satisfaction had.

The appellee (the sheriff) filed an answer in which he alleges that all the property owned by the execution debtors, or either of them, was exempt from execution, etc.; that the land owned by them did not exceed in value $1,000.

To this answer a demurrer was filed and overruled by the court, and the petition dismissed, of which the appellant complains.

The demurrer should have been sustained to the answer, as there is no allegation that the defendants in the executions were housekeepers with families; but as the case must go back with leave to the appellee to amend his pleading, it is proper to dispose of the principal question in the case, and this is, Can the owner of a homestead and other property exempt from execution claim exemption against an execution issued in favor of the commonwealth?

The statute provides that certain articles of property therein enumerated shall be exempt from execution, attachment, distress, etc. No exception whatever is made in favor of any execution creditor, and the officer having the execution and levying it upon land occupied as a homestead by the debtor must set apart, where it can be done, such part thereof as may be selected by the debtor as shall not exceed in value $1,000. Where it is indivisible, and of greater value than $1,000, section 12 of article 13 of chapter 38, General Statutes, provides the manner in which it shall be sold. The general rule in regard to the construction of such statutes is, that the state is not to be regarded as embraced within such provisions unless it is so expressed, or by necessary implication was intended to be included. This doctrine was fully recognized in the case of The Commonwealth against Cook, reported in 8 Bush, p. 220, now relied on by counsel for the state as conclusive of the question presented.

In that case the proceeding was against the sheriff and his sureties for the revenue collected by him, and which he had failed to pay over. The undertaking of his bond was to the commonwealth, and to secure the payment of the public revenue.

No property of the citizen is exempt from the payment of taxes and Cook, by virtue of his office, having made the collection, was not allowed to appropriate such moneys to his own use, by asking an exemption of his own property or that...