Frazier v. Syas

10 Neb. 115 | Neb. | 1880

Maxwell, Oh. J.

This is an action of replevin. It appears from the bill of exceptions that in October, 1877, one J. D. Syas resided with his family on his homestead in Eillmore county, and was actually engaged in the business of agriculture, and was possessed of the horses in dispute. It also appears that during said month he left his house, and has not since been heard from, and that at the time he left, the horses in question were the only ones he possessed. Soon after Sy.as had left, these horses were levied upon by the plaintiff in error by virtue of an execution issued on a judgment recovered in favor of one Pinney and against Syas. The defendant in error, who is the wife of J. D. Syas, continued to reside on the homestead, and brought an action of replevin and recovered the possession of the property, and on the trial of the cause judgment was rendered in her favor for a return of the property and damages for withholding the same. The cause is brought into this court by petition in error.

It is clearly shown by the record that the defendant in error is a resident of this state, the head of a family, and at the time the property in question was levied upon was actually engaged in the business of agriculture, and that these horses were the only ones she possessed. Under these circumstances they were exempt.

. Section 530 of the code provides that “ no property hereafter mentioned shall be liable to attachment, execution, or sale, on any final process issued from any court in this state, against any person being a resident of this state and the head of a family.” And it is also provided that “ if the debtor be at the time actually engaged in the business of agriculture, in addition to the above enumerated articles, one yoke of oxen, or a pair of horses in lieu thereof.” [Gen. Stat., 618.]

In the case of Darby v. Weyrich, 8 Neb., 174, it was held that the property which is exempt by law for the •owner’s debts is not susceptible of a fraudulent alienation.

Syas, therefore, had. a perfect right to dispose of this property as he saw fit, as it was not liable for his debts. But even if the property was subject to levy and sale upon execution in case the family should abandon their residence in this state, still, as it is shown that the wife and family continue to reside here, the property was not liable. In case of the husband’s death the property would not thereby become subject to sale upon execution; why, then, should such liability accrue in case of his absence ? It is the evident intention of the law that the exempt property in the possession of the family shall remain exempt so long as the family continue to reside in the state. Bonnell v. Dunn, 29 N. J. Law, 437.

As was said in Bowker v. Collins, 4 Neb., 496, the homestead law being remedial in its character, should receive a liberal construction consistent with justice for the purpose of preserving a home for the unfortunate. And the same rule applies to the exemption of chattels. The law is for the benefit of the family of the debtor, and its benefits may be claimed by the actual head of such family then residing in'the state, although the husband may have absconded.

The property in question not being subject to levy and sale upon execution, the judgment of the court below is affirmed.

Judgment affirmed.