Bank of Gulfport v. O'Neal, 86 Miss. 45

Bank of Gulfport v. O'Neal

86 Miss. 45 | Miss. | 1905

TRULY., J.,

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 *51property when “a doubt shall arise whether the right to the property be in defendant or not/’ and such bond should be conditioned that the obligors therein will “indemnify and save harmless the officer against all damages which he may sustain in consequence of the seizure or sale.” This bond protects the officer, and also any claimant who may successfully propound a claim as owner of the property. Section 19 67 provides1 that an officer may demand a bond when he shall be about to levy legal process “on any personal property claimed as exempt and a doubt shall arise as to the liability of the property to be sold,” and should be conditioned to indemnify and save harmless the officer and “to pay the defendant all damages which he may sustain in consequence of the seizure or sale.” This bond is intended to save harmless the officer against any claim for damages, and inures to the benefit of a defendant whose exempt personal property shall be. wrongfully sold. As to such defendant, the amount of damage which he may recover in a suit on the bond is fixed by the statute at double damages for the loss he has sustained by the seizure or sale of the property. After the bond had been given as demanded, the officer proceeded to advertise for sale the property levied on, and on the day of sale, and be^ fore the sale in fact began, Hammack appeared, and preferred a claim to the property as exempt from seizure or sale, he being the head of a family and a householder,, residing in a city, town,. or village, and the property in question being personalty, and not exceeding in value $250, and demanded that the goods be released. This demand being made, the officer declined to proceed with the sale until he had received positive instructions from Thornton, the judgment creditor, and one .of the obligors in the bond, who ordered the sale to be made, assuring the officer that he was fully indemnified and protected by the bond which had been.previously executed and delivered to the officer. Thereupon the property.was sold, and the bond was put in suit in the name of the payee for the use of the 'owner of the property against all the obligors in the bond, under the provisions of *52Code 1892, § 1968. It developed upon the trial that this tvas all the personal property that Hammack owned. At the conclusion of the testimony, the appellants introducing no evidence, the circuit judge directed a recovery in favor of the appellee for $400, being the full penalty of the bond, but less than double the value of the property sold. Erom that judgment this appeal is prosecuted.

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 *53less in value than the statutory exemption which is granted under sec. 1971. In either event the property was not lawfully liable to seizure, and the levy vested no interest .in the property in the judgment creditor. In addition to this, on the day of sale, and before any rights had vested as against the owner of the property, Hammack did present his claim of exemption based upon the proper ground as prescribed by sec. 1971. This claim of exemption being filed, it was the duty of the officer to respect it, and, realizing this, the record shows that it was only upon the assurance of the judgment creditor that he was protected by the indemnifying bond that he was inducéd to proceed with the sale.

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 *54the indemnifying bond which he is authorized to demand in the state of case made by that section, and in this case the amount fixed was $400, something less than it would have been had the penalty been fixed as required by sec. 3482. But brushing aside all minor differences and trivial variances, the real legal inquiry is, What effect did the bond have? In the light of this record, the answer to this must be that it permitted property undeniably exempt from seizure or sale to be sold under execution to satisfy the judgment debt due one of the appellants. It had, therefore, all the legal effect of a bond accurately drawn and conditioned according to sec. 1967. Having had the effect of a bond executed under the terms of that section, the obligors therein are liable to the same consequences. Having claimed the benefit and advantage, they cannot escape the penalty. This by virtue of Code 1892, § 946. That section provides that when a bond shall be executed in any legal proceeding it shall inure to the person to whom it is designed by law as a security, and be subject to judgment in his favor, no matter to whom it is made payable, nor what is its amount, nor how it is conditioned; and the person executing such bond shall be liable to judgment thereon if such bond had the effect which a bond payable and conditioned as prescribed by law would have had. Therefore in the instant case the obligors are bound to the full extent of the penalty of the bond as finally and completely as though the bond had followed the exact verbiage of the statute. To hold otherwise would operate as a gross injustice to the officer, who, relying upon the assurance of protection given by the bond, proceeded to make a sale of exempt property, which, in default of the execution of such bond, he would not have done. To allow him now to suffer as under Oode 1892, § 1969, he would do if he had not taken an indemnifying bond, would be perversion of justice. We find no error in the record.

The judgment is affirmed.