Mallory v. Berry, 16 Kan. 293

Mallory v. Berry

16 Kan. 293 | Kan. | 1876

The opinion of the court was delivered by

Brewer, J.:

The only question in this case is, whether a steer belonging to the plaintiff was exempt from seizure upon execution. The plaintiff, who was the head of a family, and engaged in farming, owned but one horse and this steer. It was about twenty months old, and had never been worked. He had contracted for a pair of steers, and intended to work them together. This one he had paid for and taken home; the other he had not. When the animal was taken on execution he replevied it, and having obtained possession of his mate, commenced working them together. The first time they were so yoked and worked was on the day of the trial before the justice, some few days after the seizure. Was it exempt? The district court evidently thought it was not, and charged the jury, that if it was used in good faith as a work animal, it was exempt, but if it was not, and had not been so used, it was not exempt. Was this ruling correct? The statute reads, “Two cows, ten hogs, one yoke of oxen, and one horse or mule, or, in lieu of one yoke of oxen and one horse or mule, a span of horses or mules; twenty sheep,” etc. Gen. Stat., p. 474, §3, fifth clause. It is well settled that exemption laws are to be liberally construed, though not of course that they should be so construed as to exempt articles obviously outside of the legislative purpose. Now the fact that this animal was not actually used, and had never been used as a work animal, does not seem to us properly decisive of the question of exemption. The expression, “yoke of oxen,” as used in an exemption statute, does not necessarily *295imply cattle already broke to work. If they are cattle intended by the owner for nse as work cattle, and old enough to be so used, it seems to us that they are fairly within the purview of the statute. A “horse” is exempt; but at what particular age an animal ceases to be a colt and becomes a horse, is not specified in the statute. Is he considered to be a colt, whatever his age, until broke to saddle, or harness? Or. does he become a horse, as soon as broke, no matter how young? One fair test, it would seem, is, that he is old enough to be worked, and bought or raised by the owner therefor. We find several decisions in other states which throw light on this case. In Carruth v. Grassie, 11 Gray, 211, under a statute exempting a cow, a heifer only twenty months old, and not giving milk for more than a year thereafter, was held to be exempt, it appearing that the owner Was raising it for his family cow. Under a like statute in Dow v. Smith, 7 Vt. 465, a heifer, forward with .calf, was declared exempt; and later, by the same court, in Freeman v. Carpenter, 10 Vt. 433, a heifer not with calf was also adjudged exempt. In Mundell v. Hammond, 40 Vt. 641, two calves less than a year.old were held to be exempt under a statute exempting a yoke of oxen or steers. See also construing exemption statutes, Harthouse v. Rikers, 1 Duer, 606; Wolfenbarger v. Standifer, 3 Sneed, 659. Under the ruling of the district court, a poor man, unable to purchase a. yoke of oxen already broken and trained to work, who should purchase a couple of young, unbroken cattle, although old enough to be worked, intending to break them himself and thus save that expense, could not hold them exempt, while his more prosperous neighbor who can afford to pay the added cost of breaking buys a yoke of cattle already broken, and holds them against his creditors. This does not seem like carrying out the spirit of the exemption law, which was intended for the benefit of the poor man, and should be construed as to secure protection to those most in need of it.

The judgment will be reversed, and the case remanded with instructions to grant a new trial.

All the Justices concurring.