Crow v. Whitworth

20 Ga. 38 | Ga. | 1856

By the. Court.

Benning, J.

delivering the opinion.

The question in this case was, whether the Sheriff had authority to sell the tract of land laid off to be exempt from sale ? He did sell it. And that question depends upon several others, and among them, upon these two: Whether, under the Exempting Act of 1841, when a man having three children, all under fifteen, causes as much as fifty acres of his land to be laid off, the tract or any part of it is exempt from sale to satisfy his debts ? Secondly. Whether any part of the land of such a man is exempt from such a sale, if the part has a grist-mill on it ?

The Act declares, that “ Every white citizen of this State, male or female, being the head of a family, shall be entitled to own, hold and possess, free and exempt from levy and sale, by virtue of any judgment, order or decree of any Court of Law or Equity in this State, founded on any contracts made after the first day of May next,” (May, 1842,) “ or any process emanating from the same, twenty acres of land, and the additional sum of five acres for each of his or her .children: under the age of fifteen: Provided that the samp,, or any part 'thereof, be not the site of any city, town or village, or of any cotton or wool-factory, saw or grist-mill, dr of any other machinery propelled by water or steam.” This is de~ .clarod in the first section of the Act.

The second section of the Act declares, that “ When any head of a family shall own a greater quantity of land than that exempted from levy and sale by the provisions of the first section of this Act, that he or she shall procure the County Surveyor to lay off the number of acres so exempted, so as to include the dwelling-house and improvements of the original tract (if there be any thereon.”) “And he or she shall designate to the Sheriff, or other officer in whose hands the process directing a levy and sale may be, the boundary so laid off, and it shall not be lawful for the Sheriff or other officer to levy on or sell the tract so designated.”

The third section is as follows: “No land shall be exempted from levy and sale under the provisions of this Act, which' derives its chief value from other cause than its adaptation to agricultural purposes.” (Cobb’s Pig. 389.)

These are the parts of the Act from which the answers to the two questions are to be gathered.

Do they make it unlawful for the Sheriff to sell as much as fifty acres, belonging to a man with three children under fifteen, if ho has caused the fifty acres to be surveyed, &c. as exempt from sale, for his debts ?

" In our opinion they do not. If such a person should cause twenty acres for himself, and five for each of his three children — thirty-five in all — to be surveyed and laid off, and should designate to the Sheriff the tract so laid off, and the Sheriff should, nevertheless, sell it, then these 'provisions of' the Act would, as we think, render such sale unlawful. But unless the person did all this, the same provisions of the Act would, to our mind, render the sale of any part of his land, by the Sheriff, “lawful.” That is the necessary implication, from the closing part of the second section. And the first section must be taken with the second, and some effect must be given to both, if possible.

The Act provides a mode for valuing the parcel. We do -not say that we consider a resort to this mode an indispensable condition to the exemption of the parcel. We rather think it is not. But a compliance with the other requirements of the.Act, we think, is, the requirements as to a survey, and a notification to the Sheriff. On a compliance with these, it shall not “ be lawful” for the Sheriff to levy. This is what is expressed. On a non-compliance, it shall be lawful 'lor the Sheriff to levy. This is what is implied.

Taking one part of the Act by another, this is the result ■to which we are led. We should be led to the same conclusion by the argument from the inconvenient, how would it be possible, in any case, for the Sheriff to know what was exempt, unless it was set apart by boundaries, and he was made acquainted with the boundaries ?

[1.] We think, therefore, that for aught that is contained in the Act aforesaid of 1841, it was lawful for the Sheriff to sell the tract.

[2.] We think, too, that if any part of a man’s land has a ^grist-mill on it, that part cannot be exempt from liability to be applied to the payment of his debts. The first section of the Act expressly excepts such part from the exempting effect ,of the Act. And section three cannot, by implication, bring such part within’such exempting effect, even though such part do not derive “its chief value” from the mill, but from “ its adaptation to agricultural purposes” ; for the implication from that section that would bring such part within the exempting -effect of the Act, is not a necessary one. And it is a rule that the expressed will of the Legislature is not to be considered as abrogated by any but a necessary implication.

It follows, that we think the charge of the Court, so far as it differs from the conclusions to which we have come, was erroneous.

A new trial is therefore granted.

And as these points must make an end of all the other questions raised in the case, we leave those questions without notice.

It may not be amiss to remark that the question whether, if Whitworth caused as much as fifty acres to be laid off by mistake, he is beyond redress in Equity, was not considered by us.