32 Wis. 387 | Wis. | 1873
Two questions arise upon, this record : 1st. Can E. D. Levitt claim the property which was levied on by the plaintiff under the execution in favor of Lanyon, as exempt under the statute? and, 2nd. If he can, then can the defendant have the benefit of this defense in this action, in the same manner that Levitt might have insisted upon the exemption in the suit brought by him against the plaintiff? We think an affirmative answer must be given to both questions.
It seems to us that Levitt was entitled to claim the property as exempt, under subdivisions 8 and 9, section 32, ch. 134, R. 5. Those clauses of the statute expressly exempt from sale on execution the provisions of the “ debtor and his family ” necessary for one year’s support, either provided or growing or both ; together with the necessary food for all the exempt stock ennumerated therein. It is not pretended that the grain levied on by the plaintiff was any more than sufficient for one year’s
The evidence in the case shows that E. X). Levitt is over twenty-one years of age, unmarried, and resides with his mother, brothers and sisters. His father died about four years before the trial, leaving a widow and five or six children, also property consisting of forty acres of land, a team of horses, two cows and eight hogs. E. D. Jjevitt is the oldest child at home, and has devoted his entire earnings since his father’s death to the support of his mother, brothers and sisters. The oldest child next to him at home is sixteen years old, and the others are too small to do anything. He “ attends to matters out doors,” uses the team to cultivate the land belonging to the family, and says that he regards himself as “ the head of the family.” The property levied on by the plaintiff was grain which E. D. Levitt raised upon land worked on shares; it was necessary food for the stock and for the support of the family, and it is fair to assume that it would all have been devoted to these purposes. And consequently the question arises Was the statute intended to apply to an execution debtor under such circumstances, and give him the benefit of the exemption ?
It is a very familiar rule in the interpretation of statutes of this character, that they are to be liberally construed. This is the doctrine of all the cases. Now the leading idea of our statute is to secure the family of an indigent debtor against want and distress for the necessaries of life. Therefore the exemption is to “ the debtor and familyOrdinarily it is the husband, father or mother who takes the charge of and provides for the wants of those living with them, constituting the “family,” and whom the debtor is bound to provide for by the claims of kindred and the obligations of society. But, as the case before us shows, it is sometimes the child and brother who
The next question is, Can the defendant avail himself of this defense that the property was exempt, in this action ? It appears that the plaintiff levied upon the property by virtue of an action in favor of one Lanyon and against F. D. Levitt. Afterwards the defendant, who was sheriff, took the property by his deputy from the possession of the plaintiff, by virtue of a writ of replevin issued by a justice of the peace at the suit of F. D. Levitt against the plaintiff. On the trial before the justice, Levitt was nonsuited, and the justice ordered that the property should be restored to the plaintiff. This judgment was reversed by the circuit court on certiorari. The property has either been delivered up to Levitt by the deputy sheriff, or remains in the possession of the latter, or did at the time
By the Court.— So ordered.