No. 6754 | Tex. | Feb 3, 1891
To permit the money in the hands of the sheriff which had been realized by Tandy from his .judgment against
.It would also, we think, operate practically to make a suit resorted to to secure the benefit and protection of the exemption law by one whose personal property had been illegally seized result in subjecting the proceeds of such suit to execution,' thus defeating the very purpose of the suit itself, and indirectly reaching the property which the law says shall not by judicial process be made subject to the payment of debts.
But it is ingeniously argued that where one whose exempt personal property has been, as in this case, unlawfully seized under legal process, if the owner desires to avail himself of the benefit of the exemption made by the law in favor of such property, he should pursue the property itself and resort to such judicial process as will give him the possession of it. That if in lieu of this he sues for damages for its unauthorized seizure and recovers judgment therefor, the satisfaction or payment of this judgment operates as a transfer of the property and vests the title thereto in the defendant. That this being a voluntary exchange of exempt property for that which is not, the proceeds are liable to execution.
We can not concur in this view. If this position be correct it follows, we think, that to secure the benefit and full protection of the exemption law in case of the illegal seizure of exempt personal property will depend rather upon the character of suit brought or the nature of the remedy resorted to for that purpose, and not upon the fact that the property is exempt.
The fact that the owner of the property so seized may not be able to give bond and avail himself of the more expeditious remedy of suing out such process as will place him in possession of the property, and that instead thereof he sues for damages and obtains judgment, which is paid, should not operate in the latter case to practically deprive him of the results of the suit and the benefit of the exemption. Although the facts in the present case are not in all respects similar to those in the case of Cone v. Lewis, 61 Texas, 332, we believe the principle involved in the case before us is the same as was decided in the former, and the views here expressed are in accord with that decision.
We do not think the money in the hands of the appellant Howard, belonging to appellee, Tandy, realized as before explained, should have been applied to the satisfaction of the execution in favor of Low & Low against him.
There was therefore no. error in the judgment of the court, and we think it should be affirmed.
Affirmed.