110 Iowa 446 | Iowa | 1900
Lead Opinion
Dissenting Opinion
(dissenting).. — What is uroperty that maybe held exempt from execution by the head of a family, when the debtor, if a farmer, holds two- or more teams, by the use-of which he habitually earns a living? Prior to the enactment of section 2906 of the Code of 1897, the statutes of" the state presupposed a levy or an attempted levy of" an execution before the debtor was required to make-a selection of exemptable property. Property that is exempt,,, dr that may be selected as exempt when execution is sought; to be levied thereon, is property that “may be exempt from execution.” It will be noticed that the statute says property that “may be -exempt from execution,’* not property that may be exempt from mortgage. Áí waiver of the benefit of exemption laws made contemporaneously with the contract or debt is of no validity. Curtis v. O’Brien, supra; Bank v. Honnold, 85 Iowa, 352. Of course, in the absence of statute-, a debtor may mortgage either exempt or exemptable property. Whether or not property covered by a mortgage may be held exempt from execution must be referred to the exemption statutes, for there is-
Stress is placed on the provision of the statute saying; that the mortgage or incumbrance is of no validity “as to sucia exempt property only.” I do not think the proper interpretation is placed on this clause. It says “such exempt property,” referring back to the previous clause. What is it thfifr. is thus referred to ? The language is, “personal property that may be exempt from execution.” The object of the provision relied upon by the majority was to save the mortgagees to other property that might be included therein. Without .that clause, a mortgage that covered property which might, be claimed as exempt would be entirely void, and no rights; could be claimed thereunder, although it covered other property that the mortgagor could in no event claim as exempt-To save the mortgage as to this property was the manifest purpose of the legislature. But it is said that the making; of the mortgage was a selection of the exempt property. Let me ask which of the other teams he selected. It will not do to» say that by making the mortgage he selected the property covered thereby as exempt, for that would manifestly defeat it. What, then, did he do? The opinion says, as I understand it, that by making the mortgage he elected to claim* other property. If that be so, what more is it than an agreement, made at the time of the execution of the instrument^, that he would not claim the property as exempt ? How chess
The validity of the mortgage should be determined- with reference to conditions existing at the time it is executed, .and not by reference to what transpires in the future. If the property covered thereby is such that it may, in good •faith, be selected by the debtor, if called on in the future ■to assert his exemptions from execution, the mortgage is 'invalid, by the express terms of the statute. If, however, 'its validity is made to< depend on actual selection, no one •-can tell whether it is valid or invalid until selection is made. Assume that a debtor has two teams, lie mortgages one to A. Thereafter 33., a creditor, sues him, and is about to 'levy execution on both teams. Is the debtor required to •select' the one not covered by the- mortgage ? I think not. "If he is not compelled to- do so, then he may hold one team •exempt as to one creditor, and another as to another. This, .•as I understand it, is contrary to all the authorities. On "the. question of the right of a debtor to select property •already covered by mortgage as exempt from execution, see Emerson v. Bacon, 58 Mich. 526 (25 N. W. 503); Patten v. Smith, 4 Conn. 450; Collett v. Jones, 2 B. Mon. 19 (36 Am. Dec. 530; Evans v. Harvester Works, 63 Iowa, 204; Brainard v. Simmons, 67 Iowa, 646; Cheney v. Caldwell, 20 Mont. 77 (49 Pac. Rep. 397; Ganong v. Green, 71 Mich. 1 (38 N. W. Rep. 661). The fault I find with the opinion is that it holds that the mere making of a rnort.-gage on property that may be held as exempt is a selection •of exempt property, or an election not to claim that identical •property as exempt. It is not necessarily a selection of •exempt property, for there may remain several items of the •same kind from which selection may be made. Moreover, we have seen that, notwithstanding the making of the mortgage, the debtor may still claim the property as exempt from