47 Barb. 497 | N.Y. Sup. Ct. | 1866
This is an action to recover the value of a pair of horses, wagon, and harness, which the plaintiff claims were wrongfully sold by the direction of the defendant under an execution against John C. Becker, her husband. Jacob S. Becker recovered a judgment in the Supreme Court, against John 0. Becker, and an execution was issued thereon to the sheriff of the county of Schoharie, in the life time of the said John C. Becker, and certain of his personal property was seized and sold by the sheriff, by direction of the defendant. Subsequent to the death of said John 0. Becker, and while the execution was in life, a levy was made by the sheriff upon the property in question, and the same was sold by •direction of the defendant, although such seizure and sale were forbidden by the plaintiff, who claimed that such property was exempt from such seizure and sale, as well in the life time of her said husband as after his death.
It is contended by the plaintiff's counsel that as there was no actual levy upon the property in question previous to the death of the said John C. Becker, the execution became in
It remains to be considered whether the property in question was exempt from levy and sale under said execution.
I think the attitude which the defendant is compelled to assume in order to justify the seizure of the property in question, authorizes the plaintiff to insist that if the said property was exempt from said seizure at the time the execution was received by the■ sheriff, it so continued, and at the death of the said John 0. Becker became a part of his estate to be administered in the due course of administration.
All the right which the defendant can claim to have acquired under the execution arises not mainly from the levy after the death of Becker, but from the fact that in contem»plation of law the property became bound by the delivery of the execution to the sheriff; and hence, in my judgment, the rights of the respective parties must relate to that period, and be determined accordingly.
It is very clear that if the execution had been delivered to-the sheriff subsequent to the death of the said John G. Becker, the actual levy would have been wholly unavailing.
From the facts, I am of opinion that such property was exempt from seizure and sale at the time the execution was delivered to the sheriff, and so continued thereafter. John 0. Becker was at the time a householder, and had a family for which he provided, consisting of a wife and several children,
The defendant insists that by the death of said John 0. Becker the exemption, if it ever existed, ceased, as it was a right which was personal to himself and could not be successfully asserted by the plaintiff. The defendant’s counsel has cited several cases to support this proposition. But in these cases the right was sought to be asserted by parties other than the debtor or his family. Under the circumstances of this case, I do not think the defendant’s proposition can be sustained. If the defendant relies exclusively upon the actual levy after the death of JohnC. Becker, no right to the property was acquired ; and if he claims by virtue of a constructive seizure of the property arising from the delivering of the execution to the sheriff, the answer is that at that period John 0. Becker was living, and no actual levy was made upon the property, which was then clearly exempt, and so continued until his death, and I do not perceive how his death conferred any additional right upon the defendant in regard to said property.
After the decease of the said John 0. Becker the plaintiff and her children continued to reside together in the same house and constituted the family, she having the charge and being in fact the householder. (Bingham v. Bush, 33 Barb. 596.) When the property was levied upon by the sheriff
In Kneettle v. Newcomb, (22 N. Y. Rep. 252,) Denio, J. remarks : “It is a fair inference from this feature that one object of the legislature was to promote the comfort of families and to protect them against the improvidence of their head. This was so considered by the Supreme Court in Woodward v. Murray, (18 John. 400.) ‘I think it clear/ said Judge Platt; ‘that the legislature meant to confer this privilege on each of these little primary communities called families.’ Again, ‘it was designed as a protection for poor and destitute families/ and the forlorn and destitute condition-of his family in the absence of the husband and father give them a peculiar claim to the benefit of the statute.” This language applies withpeculiar force to the case under consideration. (See also Wilcox v. Hawley, 31 N. Y. Rep. 654.) The courts have been so vigilant in guarding such exemption that it has. been held that a provision inserted in the obligation of a debtor, waiving such exemption was against public policy and therefore inoperative and void. (Kneettle v. Newcomb, 22 N. Y. Rep. 249.)
The right to such exemption does not always depend upon the fact whether or not the debtor is possessed of other prop= erty. ( Wilcox v. Hawley, 31 N. Y. Rep. 658.)
I therefore conclude that as the property in question was exempt from seizure and sale by virtue of the execution in
Ingalls, Justice.]
