7 Mo. App. 250 | Mo. Ct. App. | 1879
delivered the opinion of the court.
The plaintiff, by action of claim and delivery, seeks to recover certain goods which, as he alleges, the defendant, a constable, took by virtue of executions against the plaintiff’s
The defendant asked the court to rule, that when the execution of Frank was placed in the hands of the officer, being a justice’s execution, it became a lien on Vollner’s goods on that day, and Vollner could not sell the goods; and that if these were the goods claimed by the plaintiff, the jury must find for the defendant. The court refused, and ruled that if the goods in controversy, or a part of them, were exempt from "execution when sold by Vollner to the plaintiff, then the sale was valid as to such exempted goods, although the jury might believe that but for such exemption the sale would have been fraudulent as against creditors.
If -the question thus presented be considered upon principle, and apart from authority, we think it presents little difficulty. When the statute provides that “ the execution, from the time of delivery to the constable, shall be a lien on the goods,” etc., this obviously is not intended to apply to goods exempt from execution. The statutes must be construed together, and in such manner that both may prevail. Wag. Stats., p. 841, sect. 5; p. 604, sect. 11. If one set of
It would appear that the doubt surrounding this question has arisen from overlooking the fact that all exemption laws have, to a greater or less degree, a tendency to defeat, if not to defraud, creditors, and to afford facilities by which dishonest debtors may avoid payment. Thus, the laws as to conveyances in fraud of creditors, and those as to exemptions, to a certain extent clash. But it is not the business of the courts to do away with the necessary consequences of exemption laws. The balance between the good and evil of such laws is a matter for legislative consideration. Their main object, however, — the securing, not merely to the debtor, but to the family, a provision, — cannot be overlooked. To certain property, to which, for the protection of the family, the law attaches the status of exempt property, it refuses to extend an exemption in the case of an individual. Accordingly, to hold that the attempt of the individual debtor destroys the status, seems to. ignore a principal feature of the statute. Moreover, if the exemption is affixed to the property not merely in favor of the individual debtor, but, by the policy of the law, as against the execution of the creditor, and if the right of property implies the power of disposition, it would seem, ex hypothesi, that it is impossible for the debtor to convey property, while so exempt, in fraud of the execution creditor.
The cases upon this subject are collected with great. care in Thompson on Homestead and Exemption, sects.
The instructions appearing to be correct, and no error being pointed out, the judgment of the court below is affirmed.