15 Ind. 21 | Ind. | 1860
Webster recovered a judgment, and sued out an execution thereon, against Eltzroth, who gave up certain property to the officer upon the writ, and executed a delivery bond therefor. Afterward, and before the day of sale, he claimed the property as exempt from execution. The claim was refused by the officer, and the property sold; the execution plaintiff being tbe purchaser. Eltzroth was a resident householder. These facts, among others, were agreed to on the trial; and Eltzroth offered to prove that he
In The State v. Melogue, 9 Ind. 196, it was strongly intimated, that the statute contemplated a levy before the execution defendant could avail himself of the benefits of the exemption law. It certainly was not the intention of the lawmakers, that after such levy—-perhaps of all a man might possess for the comfort or sustenance of his family — he should be deprived of the opportunity to retain the possession of it, by the execution of a delivery bond, until the question of his right to have it exempt should be determined. We are, therefore, of opinion that the execution of such a bond would not estop him from setting up his claim at any time before sale. And, as the levy has to be .made, we are not able to perceive any good reason why the fact that the property was given up, should be considered a waiver of the right to claim it as exempt from sale.
The judgment is reversed^ with costs. Cause remanded, &c.