State, to Use of Young v. Boulden

• Court: Maryland Supreme Court
• Writing for the Court: MILLER, J. delivered the opinion of the Court.
• Citation: State, to Use of Young v. Boulden, 57 Md. 314 (Md. 1881)
• Decision Date: 09 December 1881
• Parties: STATE OF MARYLAND, use of PHILIP YOUNG v. WILLIAM T. BOULDEN, Sheriff, GEORGE W. CRUIKSHANK, and others.

57 Md. 314

STATE OF MARYLAND, use of PHILIP YOUNG v. WILLIAM T. BOULDEN, Sheriff, GEORGE W. CRUIKSHANK, and others.

Court of Appeals of Maryland

December 9, 1881

APPEAL from the Circuit Court for Cecil County.

This was an action brought against the appellees, Sheriff of Cecil County, and his sureties, to recover damages for an alleged refusal by the sheriff, to allow the equitable plaintiff (now appellant,) the exemption to which he alleged he was entitled under the Act of 1861, ch. 7. The declaration averred the issuing of a writ of fieri facias against the goods and chattels of Philip Young, the equitable plaintiff, and the levy on, and sale of the same by the sheriff; and assigned as a first breach of the condition of the appellees' bond, that Young, the defendant in said proceeding, made known to the sheriff, while he had the money in his hands arising from said sale, that he demanded and required him to pay to him the sum of $100, parcel of the sum arising from said sale, by virtue of the Act of Assembly exempting one hundred dollars of his property from execution. The declaration assigned as a second breach, that before the time that the sheriff made the sale, and after the levy was made, the defendant gave notice to the sheriff, that one hundred dollars' worth of his property was exempt from execution and sale by him, and that he should desist from selling the same; but that the sheriff, nevertheless proceeded to sell the defendant's property, and refused to allow him the exemption so claimed, and after the sale refused and neglected to pay over to him the sum of one hundred dollars from the proceeds.

The defendants, (now appellees,) demurred to the first and second breaches assigned in the declaration, and also pleaded. The defendants' third plea was, that Young had due notice of the issuing of the writ of fieri facias, and of the levy of the same upon his property, but that he did not before the commencement of the sale, demand to have set apart by the sheriff, as exempt from execution, any of his property. To this plea, the plaintiff replied, that the sale of the goods of Young, made by the sheriff, continued for the space of three days, and that upon the first day of said sale, Young demanded that one hundred dollars' worth of his goods should be set aside for him, and exempted from execution; and that at the time of the demand, and at the end of the first day of the sale, there remained in the sheriff's hands for further sale, a large portion of the plaintiff's goods and chattels, consisting of a great variety of separate articles, to the value of one thousand dollars, and the plaintiff averred, that the sale which was made on the second and third days as aforesaid by the sheriff, would not have been delayed by a compliance with his demand. The defendants demurred to this replication, and the Court below sustained the demurrer. The plaintiff appealed.

The cause was submitted to BARTOL, C.J., MILLER, ROBINSON, IRVING and RITCHIE, J.

N T. Biddle, and Albert Constable, for the appellant.

W. J. Jones, L. M. Haines, and R. W. Applegarth, for the appellees.

The exemption of property under the Act of 1861, ch. 7, from sale and execution, is a personal privilege, which may be waived by the party for whose benefit it was intended, either expressly or by implication. This is the uniform construction of such statutes by the Courts of our sister States. State vs. Melogne, 9 Ind., 196; Gresham vs. Walker, 10 Ala., 370; Frost vs. Shaw, 3 Ohio, 270; Bull vs. Green, 29 Ohio, 667; Twinam vs. Swart, 4 Lansing R. (N. Y.,) 263; Seaman vs. Luce, 23 Barb., 250; Wright vs. Degoe, 86 Ill., 490; Fogg vs. Littlefield, 68 Me., 55.

The right to exemption is dcemed waived by implication, unless it is demanded or claimed before the commencement of the sale under the execution. Hammer vs. Freese, 19 Pa. (St.,) 255; Miller's Appeal, 16 th Pa. (St.,) 300; Weaver's Appeal, 18 th Pa. ( St.,) 307; Rogers vs. Walterman, 25 Pa., 184; Diehl vs. Holten, 39 Pa., 213; Bair vs. Sternman, 52 Pa., 423; Commonwealth vs. Boyd, 56 Pa., 402; Diffenderfer vs. Fisher, 3 Grant, (Pa.,) 30; Rogers' Appeal, 21 Pa., 210; Wright vs. Degoe, 86 Ill., 490; Bingham vs. Maxey, 15 Ill., 290; The People vs. Palmer, 46 Ill., 398; Butt, et al. vs. Green, 29 Ohio (St.,) 667; Twinam vs. Swart, 4 Lansing (N. Y.,) 263.

From these authorities and the wording of the statute itself, it is clear that the appellant is wrong in his contention, that, under our Act, the exemption is unconditional and imperative. The statutory privilege, is not an exemption itself, but is a right to obtain one in the manner provided in the Act. In order to make the selection, an assertion of the right by a demand or otherwise, would seem to be necessary; and the right is gone by a failure on the part of the debtor, at the proper time, and in the proper manner to exercise this right.

MILLER J. delivered the opinion of the Court.

This is a suit upon a sheriff's bond for an alleged failure of that officer, in the levy of an execution and sale of property thereunder, to allow the defendant in the execution the benefit of the exemption law of 1861, ch. 7. The questions, which are presented solely by the pleadings, involve the construction and effect of the first and second sections of that Act.

The first section declares, "that one hundred dollars worth of property of each defendant therein, shall be exempt from execution issued on any judgment in any civil proceeding whatever, except on judgments for breach of promise to marry, or for seduction;" and the second provides, "that each defendant in any such execution may select property, real or personal, to the value of one hundred dollars to be ascertained by three disinterested appraisers to be summoned and sworn by the officer at the time of levying the execution, and the appraisement signed by the appraisers shall be returned with the writ." This law, passed in obedience to a constitutional requirement, was intended...