| Mont. | Jun 30, 1897
The question presented for determination by this appeal is as to whether Cheney, by giving a chattel mortgage tipon his exempt personal property to Koch, waived his statutory right to claim said property as exempt against the claims of all other persons.
It seems that the court below held that the sheriff, by paying off the amount of the Koch indebtedness secured by the
Section 3869, Civil Code, permits the attachment of personal property which has been mortgaged, but requires the officer serving the writ, before taking the property, to pay, or tender the payment of, the amount of the mortgage debt and interest to the mortgagee. But this statute has no reference to property exempt from attachment. Our statute does not give any officer any authority to attach property exempt from seizure under a writ of attachment or execution. Authority is given to attach or levy upon property not exempt. Code Civil Procedure § 893.
The sheriff can only acquire the right to attach mortgaged personal property which is not exempt by paying off the mortgage debt. Because a person is willing to give a mortgage on exempt property, or by dire necessity is compelled to do so, a sheriff or other creditor cannot pay off this mortgage, attach and take the exempt property, and leave the exemption claimant and his family in absolute want. When exempt personal property is mortgaged, it is still exempt as to all the world except the mortgagee. In such case another creditor, or an officer for him, cannot, by voluntarily paying the mortgage debt, defeat the statute which was intended to keep such persons and their families from becoming public charges.
No right exists in any one, under our laws, to take exempt property away from a claimant, against his will, by any writ. Consequently nobody can be subrogated to such right. It is absurd to suppose that there can be any such thing as the subrogation of a person to a right when no right exists. 'Koch never had any right to dispose of Cheney’s exempt property against his will. He had a right to hold and dispose of such property under and in accordance with the terms of the mortgage. This was not against, but with, the consent of Cheney. Koch never had any right to attach the property. Consequently the sheriff could not be subrogated
The court erred in finding and rendering judgment in favor of the defendant.
The judgment is reversed and the cause remanded, with directions to enter judgment on the agreed statement of the facts in favor of the plaintiff for the value of the property.
Reversed a/nd Remanded.