Green v. Blunt

59 Iowa 79 | Iowa | 1882

Beck, J.

I. The petition alleges that defendant, Blunt, recovered a judgment against one Ballard as principal, and plaintiff as surety, wherein an execution was issued which was levied upon a span of mules, a set of double harness and a wagon, all the property of Ballard; that Blunt, without plaintiff’s consent, ordered the release of the property and the discharge of the levy; that Ballard is insolvent and that subsequently Blunt caused another execution to be issued, which is in the hands of defendant, Farr, for service. Plaintiff claims that on account of the levy of the execution and the discharge thereof he is released.

It is pleaded and shown by Blunt that the first execution was levied upon the mules and other property without his consent or direction, and that all of the property was exempt from execution, being the team, wagon, etc., by the use of which Ballard habitually earned his living. It is further pleaded and shown that the property was mortgaged, and was not, therefore, subject to the execution. But it is claimed by the plaintiff that the levy was valid and bound the property, for the reason that Ballard waived the exemption by failing to set it up and object to the levy on the property at the time, and that the levy was made with the consent of the mortgagee.

II. That the property was exempt from the execution is not a matter of dispute. The question in issue is, did Ballard waive the exemption by assenting thereto or by failing to interpose objection to the levy-on the ground of the exemption?

It was the duty of Ballard, did he intend to rely upon his right to hold the property exempt from the execution, to indicate in some manner his purpose to do so. If he failed to make such a claim he cannot afterwards set it up. Richards, Crumbaugh & Shaw v. Hains, 30 Iowa, 574; Angell v. Johnson, 51 Id., 625.

We think the preponderance of the evidence supports the conclusion that Ballard did object to the levy upon the property and set up a claim based upon the exemption. He so testifies positively. The sheriff states that Ballard, when the levy was made, went away saying, “ I will go and see about it, or I will go and see an attorney about it.” Another witness who was present at the time of the levy, states that Ballard went away but made no declaration or statement. Oonsidering the statement of the sheriff alone, we are warranted in the conclusion that Ballard indicated his objection to the levy. His declaration that he would see about it, or see an attorney about it, expressed the thought that he did not intend to abandon his rights and did intend to stand upon them. Hispositivetestimonyleaves.no doubt in our minds upon this- question. The case, we think, is not within the rule of the decisions above cited.

We need not inquire whether the mortgagee assented to the levy. As it could not stand for the reason that the property is exempt, Blunt was authorized to discharge it.

The judgment of the Circuit Court must be

Affirmed.