Howard v. Rugland

35 Minn. 388 | Minn. | 1886

Berrt, J.

1. Section 310, chapter 66, Gen. St. 1878, provides for the exemption from attachment or sale, on final process, of, among other things, certain live-stock, and “the necessary food” for the same “for one year’s support, either provided or growing, or both, as the debtor may choose;” and also of “the provisions for the debtor and his family necessary for one year’s support, either provided or growing, or both;” such “food” and “provisions” to “be chosen by the debtor, his agent, clerk, or legal representative, as the case may be;” also “necessary seed grain” (not exceeding certain quantities) “for the actual personal use of the debtor, for one season, to be selected by him.” A limited value is placed upon some of the articles ex-erupted, but no limit of value is placed upon any of those above mentioned. With reference to their own language, and to the decisions of this court in Lynd v. Picket, 7 Minn. 128, (184;) Murphy v. Sherman, 25 Minn. 196; and McAbe v. Thompson, 27 Minn. 134, (6 N. W. Rep. 479,) the proper exposition of these provisions of statute is as follows: Where all the property which a debtor has, of a kind which is exempted, with a limit as to quantity or amount, and not with a limit as to value, does not exceed the quantity or amount which the statute exempts, there is no occasion for the debtor to choose or select the same as exempt. In such case the statute operates to choose and select it for him. See Zielke v. Morgan, 50 Wis. 560, (7 N. W. Rep. 651.) To such property section 314, chapter 66, stipra, which provides for an appraisal of value in a certain case, has no application; and when an officer assumes to levy an execution upon and sell property which the law thus chooses and selects as exempt, the levy and sale are per se illegal, and the officer liable to the debtor without any demand, as is also the execution creditor who participates in the levy and sale. Where the levy is upon food for stock, provisions, and seed grain, the question of what and how much is “necessary” is a question of fact for a jury; and if their verdict finds that all 'the stock, food, provisions, and seed grain which the debtor had at the time of the levy were necessary for the purposes for which the statute allows their exemption, the result is that all are exempt, and hence that the levy upon and sale of the whole, or any part thereof, are illegal.

2. Where a levy is made upon growing crops, under sections 303, 315, chapter 66, supra, not by taking manual possession of the property levied upon, but by a constructive seizure evidenced by filing a copy of execution and return with the town clerk, and afterwards, when the crops have become ripe for harvest, a sale of the same is made, the wrongful taking may properly be said to have been consummated on the day of sale; so that, in an action of claim and delivery, or for a conversion, the value of property taken may properly be shown, estimated, and found as of that date. Sherman v. Clark, 24 Minn. 37; Hossfeldt v. Dill, 28 Minn. 469, (10 N. W. Rep. 781.)

These conclusions dispose of what we regard as the substance of the controversy before us; and, without here adverting to many minor matters which were or might have been excepted to, the order denying the new trial is affirmed.