Blackford v. Boak

143 P. 1136 | Or. | 1914

Mr. Justice Moore

delivered the opinion of the court.

Are the proceeds arising from the voluntary sale of exempt personal property liable to execution, when the fund so obtained is intended to be reinvested in exempt property? If so, is the answer herein sufificient to bring tbe case within that principle? In the absence of an enactment, the rule governing the first inquiry is thus stated by a text-writer:

“When exempt personal property is exchanged for property in kind or like character, the property received in exchange is. also exempt; but when property is sold for money, or is exchanged for merchandise or other property not exempt under the law, the money or the property received in exchange is liable to execution”: 18 Cyc. 1443.

Our statute prescribing the kind of chattels of a judgment debtor that are not liable to seizure and sale contains clauses which read:

“All property * * of the judgment debtor shall be liable to an execution, except as in this section provided. The following property shall be exempt from execution: * * 3. The * * ‘team’ * * necessary to enable any person to carry on the trade, occupation or profession, by which, such person habitually earns his living, to the value of $400. * * 7. No article of property, or if the same has been sold or exchanged, then neither the proceeds of such sale nor the article received in exchange therefor, shall be exempt from execution issued on a judgment recovered for its price”: Section 227, L. O. L.

1. Though a statute exempting property from execution is in derogation of the common law, such enactment, being remedial in character, is to be liberally construed: 2 Freeman, Executions (3 ed.), § 208. This author, in the section noted, discussing this subject, remarks:

‘ ‘ Wherever this rule prevails, and it does not clearly appear whether certain property is or is not embraced within the exempting statute, the debtor will generally be allowed the benefit of the doubt, and suffered to retain the property. ”

2. It will be kept in mind that Section 227, subdivision 7, L. O. L., prevents a judgment debtor from taking advantage of Ms own wrong by exchanging an article of exempt personal property for another of the same class, and asserting the latter to be exempt from execution issued on a judgment recovered for the price of the former. As all property of the judgment debtor is liable to execution, except as provided in the section referred to, it was unnecessary in subdivision 7 of the enactment to use the word “proceeds,” unless it was intended that such avails should also be exempt from execution issued on a judgment recovered for any debt other than the price of the exempt article of personal property so sold. Construing that subdivision in accordance with the liberal rule mentioned, it would seem necessary to follow that, since such proceeds are liable to an execution issued on a judgment recovered for the purchase price, the converse of this postulate is applicable, and hence the avails so obtained •are exempt from seizure and sale pursuant to any other judgment.

3. The term “proceeds,” as thus employed evidently means a sum of money paid, or the acknowledgment of a debt created, to evidence the consideration for a sale of exempt personal property. Such medium of exchange, when received. with intent of being reinvested in other like chattels, is by fair implication of the statute also exempt from execution: Cullen v. Harris, 111 Mich. 20 (69 N. W. 78, 66 Am. St. Rep. 380, and notes).

4. 5. The promissory note in question was executed December 13, 1913. The judgment herein was rendered May 20, 1914, and 11 days thereafter a notice of garnishment was served. Judicial notice of the wet season, which occurs in Oregon during the winter months, will be taken, and based upon such knowledge it cannot be said, as a matter of law, that an unreasonable time had elapsed until Ridenour would require another‘team to pursue his farming: Tillotson v. Wolcott, 48 N. Y. 188.

6. The answer does not expressly aver that Ridenour has no other team with which he habitually earns a living by farming, but such fact is fairly to be inferred from the allegations of that pleading.

The order brought up for review was proper under the circumstances, and it is affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice McBride and Mr. Justice Ramsey concur. Mr. Justice Burnett dissents.