86 Miss. 45 | Miss. | 1905
delivered the opinion of the court.
Stated most strongly for the appellants, this case is as follows: A. D. Thornton, one of the appellants, obtained a judgment against A. 0. Hammack. Execution was issued thereon, placed in the hands of D. L. O’Neal, a constable, and by O’Neal levied on a stock of merchandise then in the possession of Hammack, which inventoried $207.48 at the date of the seizure. Ham-mack at the time of the levy claimed the property as exempt from seizure, for the reason, according to O’Neal’s recollection, that it belonged to his wife, but according to the positive testimony of Hammack his claim was an assertion of his right to exemptions as a householder having a family and residing in a town, city, or village,. Upon this claim being made by Ham-mack, that the property was not liable to seizure, the officer demanded of the execution creditor a bond to indemnify him against liability for damages on account of said seizure. The bond was given, signed by Thornton and his own sureties, appellants, in a penalty approximating though less than double the full value of the property, but conditioned according to Oode 1892, § 3482, and not as prescribed by Oode 1892, § 1967. Section 3482 relates to the bond which may be demanded by an officer levying an execution or other legal process on personal
The first contention presented on behalf of appellants is that Hammack, by failing to select the property which he claimed as exempt when the execution was first levied, was deprived of his rights to subsequently make any claim of exemption. To this it would be sufficient to say that the law is not so written, and that all laws granting exemptions must be liberally construed in favor of those entitled to the exemption. But the contention is based upon a misconception of the statute. Section 1966 provides that when an officer shall be about to levy an execution upon property, any part of which is claimed as exempt, the officer “shall demand of the defendant that he make selection of such property as is exempted to him and in reference to which he has the right of selection.” In the instant case this course was not followed by the officer, for although, by his own admission, Hammack claimed the property to be exempt, no request was made that he should select the property which he desired to claim as exempt, and no notice was given him that it was either his duty or privilege to make such selection. He did not, therefore, by this innocent omission, forfeit his right to the exemptions granted him by the law, but might at any time before sale assert his legal rights in a lawful way.
It is argued again that Hammack, by asserting, when the property was seized, that it belonged to his wife, thereby waived his right to demand the allotment of his exemptions. We fail to appreciate the force of this reasoning. If the property belonged to Mrs. Hammack, it was not subject to this execution, and Thornton had no valid lien on or claim to it. If the property belonged to Hammack, individually, it was still exempt because
The contention that Hammack was not entitled to assert his right of exemption because he did not select the particular articles claimed as exempt, is not sustained by the statute. By the express terms of the law any species of personal property not exceeding in value $250 can be retained by certain exemption-ists in lieu of the property exempted by the general provision to each head of a family. So, in the instant case, no specific selection or allotment and segregation of particular articles was necessary, because the aggregate value of all the personal property seized was less than the amount which the law exempted from seizure or sale to householders and heads of families residents of municipalities.
Finally, it is urged by the appellants that this judgment cannot be sustained because the bond which forms the basis of the suit was not conditioned according to law to meet the case presented by the facts of this record. The bond contains no specific recitation of the reason which induced the officer to demand it,, or why Thornton was required to execute it. It simply states that the execution had been levied .on a certain lot of general merchandise as the property of Hammack, and it is conditioned to save harmless the officer from the consequence of his action, and to pay and satisfy any person proving title to the goods all damages which such owner may sustain by reason of the seizure and sale. Section 1967 permits the officer to fix the penalty of
The judgment is affirmed.