| Iowa | Oct 24, 1890
Lead Opinion
I. ■ In the month of October, 1875, the defendant Brown recovered a judgment against the plaintiff for the sum of four hundred dollars and •costs. At that time the plaintiff was insolvent. The plaintiff was a soldier in the war of the rebellion, and in the month of October, 1886, he received a pension from the United States on account of physical disability incurred while in the military service. He was allowed .and paid the sum of fourteen hundred and'forty dollars •as arrears of pension. Upon receiving the said sum of money he bought one hundred and twenty acres of land, for which he paid out of said pension money the sum ■of five dollars an acre. He built a house on said land into which he moved his wife and family, and has since occupied the premises as a homestead. On the eighteenth day of May, 1889, the defendant Brown •caused an execution to be issued on said judgment, and levied on the land, and by this action the plaintiff seeks to restrain the defendant Pomroy, who is sheriff, from celling the land in satisfaction of the judgment.
In the case of Webb v. Holt, 57 Iowa, 712" court="Iowa" date_filed="1882-03-24" href="https://app.midpage.ai/document/webb-v-holt-7099821?utm_source=webapp" opinion_id="7099821">57 Iowa, 712, it was held that pension money was exempt from the payment •of the debts of the pensioner while it was in course of transmission to him, but not after it came into his possession. This construction of section 4747 of the Revised Statutes of the United States was adopted by a majority •of this court. The same principle has since been adhered
It is correct as claimed by counsel for appellees that the weight of authority is contrary to our present holding. But courts are not always controlled by the weight of authority. If they were, the duties of courts of last resort would be simply to ascertain the number of cases involving the question, and follow the majority. There is the other important consideration that the weight of authority should commend itself to the judgment and conscience of the court having before it the question for determinati on.
If the rule adopted by this court heretofore were such as that rights may have accrued by reason of the rule, whereby the law as declared has become what is known in the law as a rule of property, we might well hesitate to overrule the cases above cited. But no such a result will follow our present holding. The relation of the creditor of the veteran pensioned soldier has
The decree of the district court is reversed.
Dissenting Opinion
(dissenting). — It is true that courts are not always controlled by the weight of authority, but when numerous courts of high standing have duly •considered a statute, and all but one or two agree as to its intent and scope, one of the courts so agreeing -should not overrule its decisions, and adopt a different view of the statute except for reasons of controlling force. In cases of doubt, it is usual and proper to give great consideration to the weight of authority. The section of the federal statute construed in the foregoing •opinion is as follows: “No sum of money due, orto become due, to any pensioner, shall be liable to attachment, levy or seizure, by or under any legal or equitable process whatsoever, whether the same remains with the pension office, or any. officer or agent thereof, but shall inure wholly to the benefit of such pensioner.”
The exemption applies in terms only to money due or to become due, and there is no suggestion in the statute that it is designed to apply to any other kind of property. The exemption applies only to such money, “whether the same remains with the pension office, or any officer or agent thereof,” the clause quoted necessarily controlling and limiting the effect of the clause •of the section immediately following. That is not peculiar to the statute under consideration, but has •been frequently incorporated in substance and effect in acts of congress relating to pensions. It has heretofore as a rule been considered as designed to exempt the pension from the seizure for liabilities of the pensioner •until it should be received by him. Had it been the intent of congress to exempt not only the money, but also all property in which it should be invested, such intent could readily have been expressed in language which would have left no room for doubt. To give the
It was said in Rozelle v. Rhodes, 116 Pa. St. 129, 134, that “the exemptions provided by statute, upon any fair and reasonable construction, will only protect the fund whilst it is in course of transmission to the pensioner ; after that it is liable to seizure as other money.” In Friend v. Garcelon, 77 Me. 25, it was said, ‘ ‘ The question is, whether this provision furnishes any protection to or exemption of the money after it comes into the pensioner’s hands? A careful examination inclines us to the conclusion that it does not. The meaning of the section seems to be that the protection is extended so long as the pension remains in the pension office or its agencies, or is in the course of transmission to the pensioner. It is money ‘due,’ or to ‘become" due,’ and not money collected, that is protected by the law. By another provision of the federal statutes, a pensioner is not allowed to pledge or sell any right or interest in his pension. The extent of all the interference of the government seems to be to insure the actual reception of its bounty by the person entitled to it. When the money is actually in the possession of the pensioner the protection is gone.” That doctrine is adhered to in Crane v. Linnens, 77 Me. 59, 61. In Cranz v. White, 27 Kan. 319" court="Kan." date_filed="1882-01-15" href="https://app.midpage.ai/document/cranz-v-white-7885601?utm_source=webapp" opinion_id="7885601">27 Kan. 319, it was said that the protection afforded by the statute was to.an undelivered sum of money, and that the clause ‘ ‘ but shall inure wholly to the benefit of such pensioner” is qualified by, and must be read in the light of, the preceding words of the section, and that it “ applies to money due, or to become due, and not to money paid in and in possession.” It was further said that “ nowhere in the section is there reference to pension money in the hands of the pensioner. It does not purport to exempt money in such hands from the operation of state laws, either those of taxation, or the ordinary statutes concerning exemptions and indebtedness.” The construction adopted in the
The appellee contends that congress has no power to exempt from execution pension money after its payment to the pensioner. That power was questioned in Webb v. Holt, 57 Iowa, 712" court="Iowa" date_filed="1882-03-24" href="https://app.midpage.ai/document/webb-v-holt-7099821?utm_source=webapp" opinion_id="7099821">57 Iowa, 712, 716; in Hissem v. Johnson, supra, and in Cranz v. White, supra. It was referred to, but not determined, in United States v. Hall, 98 U.S. 343" court="SCOTUS" date_filed="1879-01-27" href="https://app.midpage.ai/document/united-states-v-hall-89875?utm_source=webapp" opinion_id="89875">98 U. S. 343; that case going no further than to hold that congress may enact laws to protect pension money until it shall have passed into the hands of the pensioner. The power to enact laws which shall have the effect necessarily given to the section under consideration by the opinion of the majority is not expressed in the constitution, and if possessed by congress it is an implied or incidental power. In the view I take of the statute it is not necessary to determine whether that power exists, but the fact that if exercised it would create in many, if not all, the states a new class of exemptions, and would be