Hickox v. Fay, 36 Barb. 9

Hickox v. Fay

36 Barb. 9 | N.Y. Sup. Ct. | 1861

By the Court,

E. Darwin Smith, J.

The charge of the judge that “if the jury found that any part of the debt upon *13which the judgment was recovered, to collect which the execution was issued, was for the purchase price of property which was exempt from levy and sale on execution, then the sheriff was authorized by virtue of such execution to levy upon any of the property enumerated in, and rendered exempt from, levy and sale on execution by the act entitled can act to extend the exemption of household furniture and working tools from distress for rent and sale on execution/ passed April 11th, 1842, and sell sufficient of such property to satisfy such part of such debt so included in the said judgment,” I think erroneous, and the exception of the defendant’s counsel thereto well taken. The judgment was for $138.91, and it is not pretended that it was recovered on a demand for the purchase money of any of the property levied on by the defendant, except a camera stand, valued at $20. The theory of the charge is, that if any part of the judgment was recovered for the purchase price of household furniture and other articles exempt from levy and sale on execution under the said act, the sheriff might levy upon any other exempt articles to the amount of the purchase price of such articles included in said judgment. This, I think, involves a radical misconception or misconstruction of the statute. The terms of the statute are explicit. After giving the exemption of household furniture, working tools and team owned by any person being a householder, &c. to the value of $150, it provides that “such exemption shall not extend to any execution issued on a demand for the purchase money of such furniture, or tools, team, or articles now enumerated by law.”

The execution must follow the property sold, as if the plaintiff retained a specific lien thereon for the price. It was designed to prevent frauds in the purchase of the exempt class of property, by giving the vendor a right to retake the same on execution, notwithstanding the exemption of the statute, precisely as though he had taken a chattel mortgage on the same, which he was seeking to enforce. The statute *14did not give a general right to the vendor of any of the class of exempt property to take any other of such property for his debt. His right is in the nature of a particular lien on specific property, and does not extend to any other property except the precise property sold. In this particular, the charge was erroneous. It is also erroneous in another view. The. plaintiff, I think, had waived his right to follow the property sold by him, though the purchase price therefor was in fact part of the sum for which the judgment was recovered. The judgment was entire, and for part of the amount the plaintiff had no claim to follow any specific property of the judgment debtor, under the provisions of the statute. By taking a judgment for the price of the tools or other exempt property sold to the plaintiff, together with other debts, he must be deemed to have elected to abandon his claim to follow the specific property. The case is in principle within those cases where a right of arrest for a debt fraudulently contracted, or other cause exists, and the creditor unites in one action and recovers' judgment for such debt, with other claims in respect to which no such right of arrest and imprisonment on execution exists. In such case it is properly held that the right to arrest and imprisonment = is lost by a recovery of a judgment, and the right of arrest at the commencement of the action cannot be exercised or maintained for the amount of the several claims so united in one action. (Lambert v. Snow, 17 How. Pr. Rep. 517. McGovern v. Payn, 32 Barb. 83. Miller v. Scherder, 2 Comst. 262, 267. Suydam v. Smith, 7 Hill, 182.)

The party who seeks a peculiar right or remedy in respect to a particular debt must enforce it by itself, and not unite it with other claims. Any other rule would be highly unjust and oppressive. The judgment in this case is an entire one, and the debtor cannot pay any particular part thereof and save his property otherwise exempt under the statute. If the rule adopted at the circuit was correct, and he might thus, at the election of his creditor, to whom he might owe two *15debts, one a small one for fraud, and another large one for some other consideration, lose the benefit of the statute entirely.

[Monroe General Term, September 2, 1861.

Smith, Johnson and Knox, Justices.]

A new trial should be granted, with costs to abide the event.