188 Iowa 551 | Iowa | 1919
“One bay mare mule five years old, weight 1,200 pounds, named Kate, white nose and belly. One day horse mule, 5 years, weight 1,200 pounds, named Jerry, white nose. One drown mare mule, age five years old, weight 1,150 pounds, black nose and legs, scar on right front foot. One drown mare mule, age five years old, weight 1,150 pounds, white nose and belly.”
It is recited therein that the above mortgage is given subject to a mortgage of T. S. Shay for $350.
In his petition, plaintiff asked the possession of one brown mare mule, age five years, weight about 1,150
Upon this issue, the cause was tried to the court, a jury being waived, and the court found that the brown mare mule and the brown horse mule described in the petition and in the writ of replevin were worth $160 each; found that plaintiff is entitled to the possession of the same under his mortgage, and that the claim of exemption was not well founded. The value of plaintiff’s right therein was fixed at $316, with 8 per cent interest from the 29th day of January, 1917. Judgment was, therefore, entered against the defendant for the value of the mules described in the petition. From this, defendant appeals.
It is further contended that, in his pleading, the defendant claimed exemption only as to the'property described in plaintiff’s petition, to wit, the brown mules, and that he made no claim of exemption as to the bay mules; that, as no claim was made to the bay mules, the answer setting up the exemption must have had reference to the mules described in the petition.
This construction of defendant’s pleading is not tolerable. At the time the answer was filed, the bay mules had been taken, and it was the bay mules that were released under the delivery bond. Plaintiff did not own the brown mules; they were not in his possession; and the evidence does not disclose that they had ever been used by the defendant, so as to bring them under the exemption statute. The answer, therefore, must have had reference to the bay mules taken under the writ, and we think it was so understood by all the parties until later in the controversy, when it was thought to hold plaintiff to a claim of exemption only as to the property described in the writ, and not as to the property actually taken. At the time the replevin writ was served, the plaintiff owned but one team of mules, and this was the team by which he habitually made his living. We will refer to this exemption statute later.
“No incumbrance of personal property which may be held exempt from execution by the head of a family,, if a resident of this state, * * * shall be of any validity as to such exempt property only, unless the same be by written instrument, and unless the husband and wife, if both be living, concur in and sign the same joint instrument.”
It is conceded here that the wife did not sign this mortgage, and the undisputed evidence shows that defendant was a resident of the state, a married man, and the. head of
“If the debtor is a resident of this state and the head of a family, he may hold exempt from execution the following property: * * * If the debtor is a * * * farmer, teamster or other laborer, a team, consisting of not more than two horses or mules * * * with the proper harness or tackle, by the use of whioh he habitually earns Ms living.”
It is not a question of selection. It is a question of actual exemption under the statute. Certain specific property is exempt, when certain facts exist. A team of mules is exempt when the debtor is a resident of this state, the head of a family; but the only team exempt is the one by the use of which he habitually earns his living, and no other, and any mortgage given upon a team so exempt is void, under the statute heretofore referred to. A different question might arise if the debtor had more than one team by which he habitually earned his living. The exemption is made for the benefit of the family. It rests in sound public policy. It is made to protect the family against the improvident conduct of the husband. The mortgage is, as to exempt property, of no validity, unless the wife concurs in and signs the same joint instrument. What is the evidence here? It is admitted that the plaintiff is a farmer, and a resident of this state. The proof is complete that he is the head of a family; that he has a wife and children, living together as a family. The undisputed evidence is that the bay team was purchased in 1915; that the brown mules re
The mortgage is, therefore, void as to the bay mules. The plaintiff cannot and does not waive his exemption by giving the mortgage, nor can he waive it after giving the mortgage. The exemption and the inhibition against in-cumbrance are made for the benefit of the family; and, unless the wife concurs in the mortgage, it has no validity as to exempt property. The law makes the exemption when the facts exist upon which the exemption rests, and the inhibition runs against the making of a mortgage on property that is exempt. We find nothing in Grover v. Younic, 110 Iowa 446, that runs counter to anything we have here said. The syllabus does not express the rule therein stated.
Estoppel rests on the thought that the party urging the estoppel has been prejudiced by the action of the other party who is sought to be estopped. If these bay mules are exempt under the statute, and we find they are, the plaintiff has lost nothing by surrendering them to the defendant; for he could not have held them, under a void mortgage. The giving of the delivery bond neither added to nor took from the plaintiff any right that he had at the time the delivery bond was given. There is no evidence that defendant ever selected, or gave anyone reasonable ground for believing that he selected, as exempt, any other property, or any other team than the bay mules in question.
Upon the whole record, we think the court should have found for the defendant, and its action is, therefore, — Reversed.