26 Barb. 374 | N.Y. Sup. Ct. | 1858
This is the first time, to my knowledge, that the question presented in this case has arisen in the courts of this state. We are now called upon to put a judicial construction upon a statute which, like many others, contains provisions in derogation of the common law, and which the defendant's counsel contends is, like them, to be strictly complied with in its several provisions.
It is unnecessary to refer to the condition of things which existed at the time when the rule was originated by Lord Ooke, when he said, “ The wisdom of the judges and sages of the law has always suppressed new and subtile inventions, in derogation of the common law.” (Coke, Inst. 282 b, L. 9, § 485.) That rule, though somewhat relaxed, has been considered by some as well established, and as continuing to the present day. It has been frequently applied to cases arising under the various acts relating to the exemption from levy and sale under execution of the personal property of the debtor, and we are told that we .need not hesitate to apply it to the present statute. By the laws of 1850, chapter 260, § 1, it is provided that “ In addition to the property now exempt, by law, from sale under execution, there shall b.e exempt by'law from sale on execution, for debts hereafter contracted, the lot and build
The 2d section declares that, “ to entitle any proprerty to such exemption, the conveyance of the same shall show that it is designed to he held as a homestead under this act, or if already purchased, or the conveyance does not show such design, a notice that the same is designed to be so held shall be executed and acknowledged by the person owning the said property, which shall contain a full description thereof!, and shall be recorded in the office of the clerk of the county in which the said property is situated, in a book to be provided for that purpose, and known as the homestead exemption book.” (2 R. S. 4th ed. 615, § 26.)
On the 27th of August, 1853, Almon D. Packard owned a house and lot in the village of Saratoga Springs, of the "value of $1000, and on that day procured to be recorded in the “Homestead Exemption Book,” kept .by the clerk of that county, a notice executed and acknowledged as required by the act, stating that it was his design to hold said house and lot as a homestead under the act. He was at this time occupying the premises and was a householder then having a family, and so continued to reside with his family up to the first day of January, 1857, when he conveyed the premises to the plaintiff in this action.
The defendant recovered a judgment against Packard for $84.50, on a debt contracted subsequent to September, 1853, which was docketed in the clerk’s office of Saratoga county on
It is to be observed that the act was not intended to discharge, and does not in fact discharge, absolutely, the lien <?f the judgment. It suspends its operation, however. The property is to be exempt from sale on execution, during the life of the debtor, provided he continues to be a householder, and during the life of his widow if he leaves one, and until his youngest child arrives at the age of 21 years, if they continue to occupy such homestead. Notice is to be given in the manner required by the act, so that not only persons with whom the individual may contract shall be apprised of the fact, but also that all may know that the property is held as a homestead exemption. No purchaser, therefore, can complain, or insist that he is to be protected as a bona fide grantee of such premises, unless the act authorizes, or was intended to authorize, such sale and purchase, and continues the exemption after-wards from sale under execution.
It has been already remarked that the defendant’s counsel insists, that statutes in derogation of the common law are to be construed strictly. And yet the rule, in some of the courts, has been sometimes modified on the one hand, and on the other rigidly adhered to. Thus under the act exempting one cow owned by any person being a householder, it has been held that being intended for the benefit of poor families, the father or head of the family who had left the state, leaving his wife and children living together, is a householder within the meaning of the act. ( Woodward v. Murray, 18 John. 400.) So where the family are in the act of removing from one house to another, their only cow has been exempted from execution. And again,
On the other hand, the courts have said that statutes exempting a debtor’s property from liability for his debts are not remedial, and are not entitled to a peculiarly liberal construction ; and accordingly it was held that necessary food for a team exempt from execution under the act of 1842, is not also exempt, because not declared to be so in the act. (Rue v. Alter, 5 Denio, 119.) Necessary wearing apparel is not exempted in all cases, but only when it is owned by the householder or head of the family. The exemption, it is true, extends to apparel furnished by him for the use of others living with him, but does not embrace the clothing of one living with the family who provides them for himself. (Bowne v. Witt, 19 Wend. 475.) And cases might be multiplied in support of either proposition, viz: that these statutes exempting personal property from levy and sale under execution are remedial, and are not remedial; affirming the correctness of the motto, adopted by a distinguished writer on statute and constitutional law: “ Great is the mystery of judicial interpretation.
It will be seen that the intention of the legislature has been often sought after, and supposed to have been arrived at by the courts, in construing many of these statutes; and it may perhaps be concluded, that at the present day there is really no good
It is conceded by the plaintiff’s counsel, that the law is made solely for the benefit of the person who takes the steps necessary to avail himself of its provisions, atid of his family. But the counsel insists that if he sells the property thus made exempt, the creditor is not injured, because having notice of such exemption, before the debt was contracted, he had no rights in the property while it was owned by the debtor, and
The defendant is entitled to judgment, according to the stipulation in the casa
C. L. Allen, James and Uosehrans, Justices.]