51 Iowa 625 | Iowa | 1879
In The State ex rel. Haven v. Melogue et al., 9 Ind., 196, it is said, “the exemption is a.personal right which the debtor may waive or claim at his election.”
The finding of the referee in Richards, Crumbaugh & Shaw v. Haines, 30 Iowa, 574, was that “the property seized was delivered to the sheriff by Haines without making any claim that it was exempt from execution,” and it was held that Haines could not afterward insist on such right. The language of the statute is that the debtor “may hold exempt from execution” certain specified property. Code, § 3072.
We are of the opinion the debtor cannot stand by, see and know the levy is about to be made, and afterward claim the exemption. He must at the time, in some manner, indicate to the officer his purpose to claim the property as exempt. That the exemption is personal there.can be no doubt. That it may be waived is equally clear. By making the levy the officer incurs responsibility, and expenses are incurred. This can be avoided if the claim is made before the levy.
The instruction should have been given. It is not insisted by counsel for the appellee that the instruction should have been in any respect qualified, or that it is not applicable, but that it is not the law. It being insisted that there is
Reversed.