King v. Moore

• Decision Date: 13 November 1862
• Citation: 10 Mich. 538
• Court: Michigan Supreme Court
• Parties: Elizabeth King v. Alfred B. Moore

10 Mich. 538

Elizabeth King v. Alfred B. Moore

Supreme Court of Michigan

November 13, 1862

Submitted October 8, 1862

Case made after judgment from St. Joseph Circuit.

Elizabeth King, the wife of Amos S. King, brought an action of trespass against Moore, before a Justice of the Peace, for the taking of certain corn and potatoes, and corn fodder, on an execution against said Amos--the said articles being claimed as exempt from execution.

The cause being removed by appeal to the Circuit Court, it was admitted by the parties on the trial there, that said Amos was the owner of four acres of land in said county, upon which he resided with his family, and that all his personal property did not exceed two hundred dollars in value. That in May, 1858, he planted about two acres of his land to corn and potatoes, and that on the third day of June, 1858, Moore, as constable, levied upon these crops, which had just vegetated and were visible above ground, and made an indorsement of the levy upon the execution, reciting that they were turned out to him by said Amos. That after this levy the execution was allowed to rest until the corn and potatoes were fit for harvest, when Moore sold them upon the execution. That when the sale was made said Amos had no horse, cow or other animal, except one pig.

The cause being tried without a jury, the court found that the corn and potatoes were planted by said Amos for the use of his family. That there was not enough for the use of the family for six months, and to feed two cows and fatten two swine. That the family alone would require all the potatoes and twenty-six bushels of corn for food in six months, the value of which was found to be $ 19.88. The Circuit Court held the whole to be exempt, and rendered judgment against Moore for $ 34.80 and costs.

Judgment reversed, with costs, and a new trial granted.

W Sadler, for plaintiff.

C Upson, for defendant.

Christiancy J. Manning, J. concurred. Campbell, J., Martin, Ch. J. concurred.

OPINION

Christiancy J.:

Several questions have been raised in this case, all of which, however, may be resolved in the three following:

First. Can the action of the wife, under § 3294 of Compiled Laws, for property taken on execution against the husband, and which was exempt, be defeated by showing that the property was turned out by the husband to be levied upon?

In answer to this question, we think it clear her action cannot thus be defeated. The exemption is intended quite as much for the benefit of the wife and family, as that of the husband. The same reasoning applies here as in the case of a homestead exemption. See Beecher v. Baldy, 7 Mich. 488, and Dye v. Mann [ante, 291 ]. This action would seem to have been given to the wife to prevent any waiver of the exemption by the husband; as, without such waiver, the action might as well be brought by himself.Second. Does the ninth subdivision of the 27th section, chapter 131, Compiled Laws, exempting from execution "a sufficient quantity of hay, grain, feed and roots for properly keeping for six months" the animals referred to, apply to a case where a debtor has no such animals? or, in other words, does it exempt any more "hay, grain, feed and roots," than may be necessary for keeping such of the animals mentioned as the debtor has at the time of the levy?

In answer to this question, we are all clearly of opinion that this exemption cannot extend beyond what is sufficient to keep such of the animals as the defendant may have at the time of the levy. This exemption is given to render that of the animals practically beneficial; as it would be of little use to exempt the animals if the food necessary for their sustenance were liable to be taken from the owner. But if the debtor have none of the animals specified, the reason for exempting the food for them wholly fails. If he has none of the animals which the statute exempts, there is nothing upon which this exemption of the animals can operate, and the exemption of food for such animals, which is dependent upon it, fails with it. If the statute, in cases where the debtor has not the full amount of the property exempted by this section, had provided an exemption of money or other property for the purpose of enabling him to purchase enough to made up the deficiency, there might be good reason for holding the feed for the animals exempted, though he had not the animals at the time of the levy; but the statute has adopted no such principle.

Third. Does the sixth subdivision of the same section, exempting "provisions for the comfortable subsistence of a householder and family for six months," exempt growing crops of corn and potatoes, recently planted, and which have just become visible above the ground?

In answering this question, it is important to determine whether the exemption is to be governed by the state of facts existing at the time of the levy, or at the time of sale, or at some intermediate period. It is quite clear, I think, that whatever under this statute may be levied upon may also be sold, except so far as the statute has otherwise provided. Where specific articles are exempt by the statute, they can neither be taken or sold on the execution. But where the exemption is of property of a certain class or species, and only to a certain amount or value, and the debtor has property of that class or species exceeding the amount, some mode must be adopted for determining the particular portion or articles to which the exemption shall apply. It is accordingly provided that when a levy in such case shall be made, "the officer levying such execution may make an inventory of the whole of such property, and cause the same to be appraised as its cash value by two disinterested freeholders of the township where such property may be," etc.: § 28, same chapter. "Upon such inventory and appraisal being completed, the defendant in execution or his authorized agent may select from such inventory an amount of such property not exceeding, according to such appraisal, the amount of value exempted by law from execution; but if neither such defendant nor his agent shall appear and make such selection, the officer shall make the same for him:" § 29, same chapter. These sections would certainly apply to the exemption of provisions, when the defendant has more than the amount exempted.

Again, by section thirty-one it is provided, " whenever the defendant in an execution shall have cows, sheep, swine or other animals or articles, some of which are exempt by law from sale on execution, and some of which are not so exempt, the officer may take all such horses, cows, sheep, swine or other animals or articles into his possession, and the defendant or his authorized agent may, immediately on being notified of the levy, select so many thereof as are exempt by law from execution, but if the defendant be absent, or neglect to make such selection, on being notified, the officer shall make the same for him."

In all cases not otherwise provided for in sections twenty-eight twenty-nine or thirty-one, above cited, the right to levy implies also the right to sell; and the one is co-extensive with the other, so far as the question of exemption is involved; and in all such cases, at least, the right to levy and the right of exemption would seem to take effect at the same time. Is it otherwise in the cases provided for in the three sections just referred to? I think not. It is evident, I think, from the language of these sections that the selection is to be made at, or immediately after, the levy, and with reference to the then existing facts. Under...