Plaintiff, on February 19, 1910, brought her action in tbe circuit court against defendant, constable of a township in Audrain county, in which she avers that on tbe 7th of February, 1910, in an action instituted in a court of a justice of tbe peace- of that township, tbe action by attachment, wherein tbe Ferguson-McKinney Dry Goods Company was plaintiff and one J. B. Martin was defendant, a writ of attachment, was issued and placed in tbe bands of defendant, as constable, who under the writ levied on certain goods and chattels, as of tbe property of J. B. Martin, tbe petition here describing them as all of the clothing, shoes, etc., kept and found in the store known as the “Martin Notion Store”- in Mexico, Missouri. It is further averred that at that time plaintiff was the wife of J. B. Martin and that at the date of the attachment and seizure he had absconded and absented himself from his usual place of abode, and that thereby plaintiff became and was entitled to claim her exemptions as the wife of the absconding husband, out of the property and chattels so levied upon up to the value of three hundred dollars ; that on the 9th of February, she notified defendant in writing of her claim and of her right to the exemptions and demanded that they be set off and
The.answer is,' first, a general denial; then it is pleaded that on thé 7th of February, 1910, the suit referred to in the petition was instituted before the justice, in which suit the plaintiff therein, Ferguson-McKinney Dry Goods Company, sought to recover judgment against J. B. Martin in the sum of $242.54; that the justice had full jurisdiction of the case, both of the parties and subject-matter; that a writ of attachment issued therein directed' to defendant, directing him to attach, seize and levy upon the goods, etc., of J. B. Martin, or sufficient thereof to satisfy the claim and costs; that defendant, under and by virtue of the writ, attached the goods and property of the defendant mentioned in plaintiff’s petition and afterwards, by order of the court, caused the same to be sold; that before the institution of this plaintiff’s present suit and before any notice was served upon defendant by the plaintiff, the defendant, J. B. Martin, in an action before the justice, entered his appearance in writing in the case, waived the issue of process or service there
The reply was a general denial/
The trial was before the court, a jury being waived.
Plaintiff testified that she was the wife of J. B. Martin; that they had their home and lived in the city of Mexico, this State; that all the property they had Avas in this store, which her husband owned; that she had no property of her own and is hving with one of her sons-in-law, dependent on him. It appeared on her cross-examination that she had obtained a decree of divorce from her husband and that they had not lived together as man and wife from the time he had left their home in Mexico in January.
A witness on behalf of plaintiff, a son-in-law of plaintiff and her husband, testified that about the last part of January, 1910, J. B. Martin, in compensation with him, told him that he was going away and would not let anybody know where he was going or when he was coming back; that he packed his trunk and said he was going to leave and that nobody was going to know when he was going to move or when he was coming back. He left Mexico that evening, getting two negroes to carry his trunk to the depot. The next
The files of the case of Ferguson-McKinney Dry Goods Company v. J. B. Martin were introduced and read in evidence. The affidavit for attachment, after averring the indebtedness, stated, as grounds for the attachment, “that the defendant has absconded and absented himself from his usual place of abode in this state, so that the ordinary process of law cannot be served upon him,” and that affiant has cause to believe and does believe that defendant is not a resident of this state. This was sworn to by an agent of plaintiff in that case and filed with the justice on the
As- appears by the docket entries of the justice, on the 16th of February, 1910, the defendant J. B. Martin appeared before the justice and entered his appearance “and consents that the attachment be sustained and that judgment be entered in favor of plaintiff for the sum of $245.30, and waives all exemption right and consents that the property now in the hands of the constable be sold to satisfy said judgment and costs.” Whereupon judgment followed that plaintiff, the Ferguson-McKinney Dry Goods Company, recover of defendant, J. B. Martin, the debt and the costs and that execution issue therefor. General execution issued on this judgment on the 18th of February for the amount of the debt, $245.30, and costs, to be levied of the goods, chattels, etc., of the defendant, J. B. Martin. The constable; defendant here, made return on this execution that he had, on the 18th of February, executed it by levying upon and seizing as the goods and chattels of J. B. Martin, all his stock of dry goods and notions in the store in Mexico, describing the location of the store and describing the goods levied upon. To this return and on this same execution the constable, defendant here, added that he had further executed the writ on the 3d of March, 1910, by exposing the goods levied on for sale at public vendue for cash and one Trimel, being the highest bidder, had bought all the stock for $255; that he, the constable, had applied $57.55 to the costs and expenses of the
The written entry of the appearance of J. B. Martin in the cause of Ferguson-McKinney Dry Hoods Company v. J. B. Martin, was introduced in evidence and is marked by the justice as having been filed February 16, 1910. By it Martin enters his appearance in that cause then pending against him before the justice, consents that plaintiff may take judgment against him “this day” for the full amount sued on in the cause and waives service - of process, the paper continuing: “And I hereby confess the grounds of attachment in this cause alleged by plaintiff and consent that the attachment may be sustained by the justice in this cause, and that the property attached and now in the hands of the constable and sheriff in this cause, may be sold to pay the judgment which is rendered against me and all costs of suit, and I hereby waive all exemptions and exemption rights, which I have or may have in the property attached.”
Defendant was called and examined as a witness by plaintiff and testified he was the constable who had made the levy. He testified that the property levied on was that set out in the inventory and was the same property described in the writ of attachment and that it was the same property he had sold under the execution; that the value of the property at the time he sold it was $255; that the written notice of claim of exemption by Mrs. Martin, the plaintiff here, wa.s served on him February 9, 1910, and he identified the notice; that he had sold all the property he had levied upon under the writ of attachment. This notice was introduced in evidence. It is addressed to the constable, defendant here, and notifies him that plaintiff, wife of J. B. Martin, defendant in the case then pending before the justice, claims and asserts her rig’ht of exemption out of the property levied on by the con
This is all the testimony in the case. At its close defendant interposed a demurrer to the evidence which the court gave. Plaintiff took a nonsuit with leave to move to set it aside, and filing that motion in due time, on its being overruled perfected her appeal to this court.-
While the rights of the wife under what are now sections 2185 and 8304, Revised Statutes 1909, have, in a number of cases, been before the appellate courts of this state for construction and application, we have found no case in which facts analogous to those here in evidence and the precise question here presented have arisen and been determined. We can only determine it here, therefore, by examination of the cases in which these sections of the statutes have been before our courts and, guided by the spirit of the statute, and the underlying reasons for the decisions, endeavor to reach a right conclusion in this case and determine it on accepted principles.
There is no contention or pretense of evidence against the fact that at the time when the action of the Ferguson-McKinney Dry Groods Company was commenced against J. B. Martin, and when the attachment issued and the attached property was seized, that J.,B. Martin had “absconded and absented himself from his place of abode.” The grounds upon which.the attachment was sued out in this case are that the plaintiff “has good reason to believe and does believe that the defendant is not a resident of this state. That
In Griffith v. Bailey, 79 Mo. 472, it - is held that where the evidence shows that as a matter of fact the husband has absconded or absented' himself from his place of abode, it does not affect the right of the wife to claim the benefit of the exemption that it was alleged in the affidavit for the attachment that he was about to leave the state with the intent to change his domicile. Lindsey v. Dixon, 52 Mo. App. 291, is to the same effect. So that we need not consider that part of the affidavit for the attachment.
The fact that Martin had absconded and was absent from his usual place of abode is further in evidence by the returns which the defendant himself, as constable, made and which are in evidence in this case. In his return to the writ of attachment, after reciting that he had executed that on the 7th day of February, 1910, the constable recites that on the 17th day of February, 1910, he returned the writ of summons “not found” as to the defendant J. B.. Martin. He never was “found” for service.
According to the testimony, after the disappearance of Martin about the 31st of January, 1910, he ap
The evidence shows that beyond bed and bedding and a few trifling articles, the property seized was all the property he had. The defendant himself testifies that the value of that property was $255 on March 3, 1910, the day upon which it was sold. Hiving the defendant the benefit of the value as at the day of the sale, instead of the day of demand and refusal, the evidence shows that the value of the property claimed by this plaintiff was within the statutory exemption of three hundred dollars.
Although in the answer in this case defendant sets up that before the institution of this suit and before any notice had been served upon him by this plaintiff, J. B. Martin, the defendant in the attachment had, in writing, entered his appearance in the cause, waived the issuance of process and service thereof and consented that the plaintiff in the cause might have judgment against him for the full amount sued for and consented that the attachment might be sustained and that the property therein in the hands of defendant, “which is the same property mentioned in plaintiff’s petition,” might be sold to pay said debt and in writing waived all right to exemptions under the law to or in said property attached, the evidence shows beyond
It is true that defendant in his return to the general execution, sets up that he executed that on February 18th, by levying upon and seizing the goods, etc. The facts in evidence show beyond question that there was no second taking' or seizure; that was done in fact under the writ of attachment on February 7th. The indorsements on the general execution in evidence tend to show that the justice taxes seventy-five cents for issuing attachment, the constable taxes one dollar for serving attachment, twenty-five dollars for “taking and keeping property,” twenty dollars for “taking and keeping property under ex.” No dates are given for these. When it is remembered that, he seized the property on February 7th and sold it on March 3d, it is evident that the whole thing was one and the same transaction, and the alleged seizure under the execution was a mere pretense. If that seizure was the one under which the property was in fact held, neither constable nor justice had any right in law to tack on to it the costs accrued under the former seizure or attachment. These are the facts in this case as shown by practically uncontradicted evidence.
Our courts have held that what are now sections 2185 and 8304 of our statute, the sections relating to exemption of property from levy and sale under execution or attachment, are always to be given a liberal interpretation; they are to be construed liberally in the interest and for the benefit of those within their protection. [See State to use Houseworth v. Dill et al.,
In Osborne v. Schutt, 67 Mo. 712, and Hombs v. Corbin, 20 Mo. App. 497, it is held that tbe debtor’s right to exemption is a personal privilege belonging to the debtor which he may or may not claim; it is a personal privilege to be exercised when the officer calls with the writ or makes a levy, and then only for the benefit of the claimant and not for the benefit of another. [Garrett v. Wagner, 125 Mo. 450, l. c. 462, 28 S. W. 762.] In the case of Hombs v. Corbin, snpra, citing Freeman on Executions, section 218, it is said (l. c. 507) that the debtor may sell' his exempt property notwithstanding judgment or execution liens, and that in case of a sale of exempt property, the purchaser would stand in the place of the debtor and could assert the right of the latter to the exemption. This latter statement, however, does not seem to harmonize with what we understand our Supreme Court to hold in Osborne v. Schutt, supra, at page 714.
In Griffith v. Bailey, supra, it is said (l. c. 476), construing what is now substantially section 2185, as that section is to be applied in case the husband has absconded, ‘£ The husband here absented himself from his home, leaving his wife behind with no instructions or purpose so far as the record discloses, to abandon that home or follow him. The moment he so left her, her right under the statute attached. It then became vested or demandable in ‘her name’ and was ‘exempt from execution or attachment’ against the husband.” In this case of Griffith v. Bailey, it is held that when the husband has absconded or absented himself from his place of abode, his wife, under section 2185, may select and hold exempt from execution or attachment, property to the value of not exceeding three hundred dollars, the husband “being so absent
In State ex rel. Fowler v. Chaney, 36 Mo. App. 513, the defendant constable was sued on his bond for improperly and unlawfully releasing to the wife of the defendant in an attachment, property claimed by her as exempt. The ground of the attachment was that the defendant therein was a nonresident of this state, and the attachment was sustained. It was there held that under such allegation, the defendant husband could not, under section 2312, Revised Statutes 1909, claim exemption, he being a nonresident, and that as the husband was not entitled to the protection of our exemption laws, neither was his wife.
Lindsey v. Dixon, supra, was an action by attachment before a justice of the peace — goods of husband seized under the writ — grounds of attachment, that defendant had absconded, etc., was about to remove his property, etc., with intent to defraud, etc., his creditors, and that he has fraudulently conveyed, etc. [Subdivisions 4, 5, and 8, sec. 2294, R. S. 1909.] The wife interpleaded, claiming the benefit of exemption on the ground that her husband had absconded and absented himself from his usual place of abode in the county. The plaintiff amended his affidavit and added as a cause for attachment “that the defendant is a nonresident of the state.” [Subdivision 1, section 2294.] The court held that while the husband is a nonresident or is about to remove out of the state, neither he nor Ms wife can have the benefit of the
In Guntley v. Staed, 77 Mo. App. 155, it is said by this court (l. c. 164) that ‘ ‘ exemption of property from execution is a personal privilege and can only be exercised by the debtor and only for his personal benefit — not for the benefit of another. ’ ’ But no question of the right of the wife under’ section 2185 was there involved. Garrett v. Wagner, supra, is referred to as authority for this. As will be noticed by reference to the facts in that case and to its decision, the particular point involved before us — the right of the wife of an absconding husband to claim this exemption- — was not involved.
State ex rel. v. Wolf, 81 Mo. App. 586, was an action on a constable’s bond, the breach assigned being that the constable had wrongfully deprived the relator of her exemption rights. After the constable had made the levy and seized the property under the writ of attachment as that of the defendant husband, the wife claimed it as exempt, the property consisting of groceries, store fixtures, a horse and delivery wagon, on the ground that the husband had absented himself from his usual place of abode and she did not know his present whereabouts. On trial the wife proved that at the time she had made her claim of exemption, her husband had absconded; that when she made her claim to the constable he declined to recognize it. The wife recovered judgment against the constable on his bond. On appeal of the constable, this court held, in answer to the contention that the wife had not made her election under the statute or made selection of specific
In First National Bank of Monett v. Morkamp, 130 Mo. App. 118, 108 S. W. 1085, there was a levy under a writ of attachment on certain property. The defendant, when notified by the officer of his right to claim exemption as head of a family, replied that he had sold everything he had and had nothing upon which to make the claim. This was asserted to be a waiver by the husband of his right to claim any of the property as exempt. All his property was levied upon and seized. The husband, defendant in the attachment, was arrested, tried, convicted and sentenced to the penitentiary, where he was confined at the time of the trial. After the seizure of the property and after the arrest and while the husband was confined to jail, where he had been kept prior to trial and commitment to the penitentiary, his wife claimed the attached property. In passing on the case this court held that the issue of the defendant having waived his right to statutory exemptions being one of fact and having been passed on by the jury in favor of the wife, was concluded here. . On the question of the right of the wife under the facts, this court held that the absence of defendant from his home was involuntary, he being confined to jail, and while he could have made the claim while in jail, in the spirit of the law he was then “absent from his place of abode” and the wife was in position and had the right to make the claim to the property as exempt. In the case at bar, we do not need-to consider as.a fact for determination, the attempted waiver of this husband; as will presently appear, we hold that his attempted waiver was a nullity.
It is clear from a consideration of our statutes relating to the claim of exemption, that either the husband or the wife can claim exemption; the wife, under section 2185, Revised Statutes 1909, only when the husband has absconded or absented himself from his usual place of abode in this state; under section 8304 only when the husband has failed to make his claim. The husband and wife cannot at once and separately make the claim on different or on the same property. There is only one exemption. Either can, the statutory facts-being present, claim the exemption; both cannot. [White v. Smith, 104 Mo. App. 199, 78 S. W. 51; Sharp v. Stewart, 185 Mo. 518, l. c. 528, 84 S. W. 963.]
These are the decisions to which we have been referred .or which we have ourselves found in the course of our examination of this case. The rule which we think is to be deducted from a consideration of them and of the statute is that, adhering to that other rule of a liberal construction of these statutes in favor of the head of a family or of the wife, in the case of an absconding or absent husband, that when this husband confessedly absconded and deserted his wife and abandoned his usual place of abode, and that was the situation at the time when the levy was made, that the wife then became vested with a right to claim her exemption by virtue of the abandonment, that she then made her claim and that that right then became so fixed in her that the subsequent incidental and, what the evidence in this case warrants us to say, pretended return of the husband, for the express purpose of de
The goods which had been levied upon, seized and attached under the writ of attachment issued on the 7th day of February, 1910, were sold on the 31st of March, 1910, ostensibly under the execution which had been issued on the 18th day of February, 1910. But it is clear that long before this sale took place and while the goods were in the possession of this defendant, the plaintiff here had notified him in writing of the existence of her claim, of the facts upon which it was founded, of the goods the claim was to operate upon, and of her assertion of her right under the statute.. He saw fit to deny the claim. Granting that he made a new levy under the general execution, he levied on goods that he then knew were claimed as exempt by this plaintiff; when he denied the claim and afterwards went on with the sale, he did so at his peril.
In Fairbanks, Morse & Co. v. Baskett, 98 Mo. App. 53, 71 S. W. 1113, Judge Goode, in discussing the law of waiver as related to estoppel, demonstrates that a waiver is only of force as against the party making it, and only as to him, if the rights of others, or substantial rights of Ms own are involved; if this occurs the waiver must be supported by a consideration. When the husband here attempted to waive his right to exemptions, the right to claim them had, by his act of absconding and absenting himself, passed toJMs wife; he had nothing to waive; that he had returned after having absconded, did not reinvest him with any right which the wife had fallen into by his act of absconding and absenting himself.
There is no question as to the value of the goods seized and sold. That they were in the possession of this defendant at the time that this suit was instituted, is, admitted and clearly established by the evidence in the case. The action of the circuit court, placing
It is urged, however, by the learned counsel for respondent, that there is no evidence in this case showing that the defendant was in possession of the property sued for at the time the suit was begun. Hence it is claimed that as evidence of possession was necessary to a recovery, the demurrer was properly sustained on that ground. There can he no dispute of the proposition that possession .by defendant of the property replevied when the action is ’begun must appear. [Section 2637, R. S. 1909.] ¥e are unable to, understand on what evidence or lack of evidence counsel make this contention. The returns of defendant, as constable, and which are here in evidence are against him. — conclusively so. He is shown to have been in possession of the property involved from February 7th, when he seized it, until March 3d. This action was begun February 19, 1910. So that on this ground the action of the learned trial judge cannot be sustained.
Our conclusion is that the judgment of the circuit court of Audrain county in this case should he reversed, and the cause remanded for further proceedings in accordance with this opinion.