94 Tenn. 651 | Tenn. | 1895
The only question presented for determination in this cause is whether a debtor may
“Memphis, Tenn., August 23, 1894.
“Thirty days after date I promise to pay to the order of G. M. Anderson five dollars. I do hereby agree to waive my rights to exemption under the laws of the State of Tennessee until the bill is paid in full. Value received. H. H. Bennett.”
£ ‘ Witness: J. M. Simms,
“Wm. H. Mills.”
Indorsed: “I do hereby transfer the within note, to W. H. Mills. G. M. Andeeson.”
The defendant, Bennett, is a daily laborer in the employment of Stewart, Gwynne & Co., a mercantile firm in the city of Memphis. The creditor i& seeking, by these proceedings, to subject to the payment of his judgment wages due Bennett, which are exempt by law from execution, seizure, or attachment. Code,. § 2931.
It appears from the record that Bennett is the head of a family, with a wife and three children. This consideration, however, is immaterial, since it is not necessary, in order to entitle the defendant to this particular exemption, that he should have been the head of a family. Of course this fact only emphasizes the necessity for such exemption, but it is not material as a matter of law. There are' other exemptions which are dependent upon this con
In the case of Cox v. Ballentine, 1 Bax., 362, it was held that “the head of the family has the right to sell, exchange or mortgage the exempt property, and the Legislature has no power to prohibit him.” See, also, Croncon v. Honor, 10 Heis., 534. It is suggested that these cases are somewhat contradictory and perhaps irreconcilable. The conflict, we think, is more apparent than real.
“There is an essential difference,” says the Su
Says the Supreme Court of Illinois: “That such, a waiver, where the same is attempted to be made by an executory contract, is ineffectual and will not be enforced, is definitely settled. * * * Such contracts contravene the policy of the law, and hence are inoperative and void. The owner may, if he choose, sell 6r otherwise dispose of any property he may have, however much his family may need ity but the law will not aid in that regard, nor permit him to contract, in advance, that his creditors may use the process of the Courts to deprive his family of its use and benefit, when an exemption, has been created in their favor. Laws enacted from considerations of public concern and to subserve the general welfare, cannot be abrogated by mere pri
Says Judge Lenio: £‘ The maxim, ‘ modus et con-ventio iñncunt legem,’ is not of universal application. It' applies only to agreements in themselves legal. Where no rule of law or principle of public policy is concerned, the parties may, by contract, make a law for themselves. One object of municipal law is to promote the general welfare of society. The exemption laws seek to accomplish this by taking from the head of the family the power to deprive it of certain property by contracting debts which shall enable the creditors to take such property on execution.” The parties to this contract sought to set aside those laws so far as this debt was concerned. This they could not do. The learned Judge says: ££I am of opinion that a person contracting a debt cannot agree with the. creditor that, in case of nonpayment, he shall be entitled to levy his execution upon property exempt from execution by the general laws of the State. * * * If effect shall be given to such provisions, it is likely that they will be generally inserted in obligations for small demands, and, in that way, the policy of the law will be completely overthrown. Every honest man who contracts a debt, expects to pay it, and believes he will be able to do so without having his property sold on execution. No one worthy to be trusted would, therefore, be apt to object to a clause subjecting all his property to levy on execution in case
The Supreme Court of Iowa, after a full consideration of the subject, said, viz.: “Without pursuing the discussion of the subject further, we are agreed in the conclusion that a person contracting a debt cannot, by a contemporaneous and simple waiver of benefit of the exemption laws, entitle the creditor, in case of failure to pay, to levy his execution, against the defendant’s objection, upon exempt property. Such an agreement is contrary to public policy, and will not be enforced. Curtis v. O'Brien, 20 Iowa, 376.
In the case of Branch v. Tomlinson, 77 N. C., 388, a similar waiver, incorporated in a promissory
In Levicks v. Walker, 15 La. An., 245, a similar conclusion was reached.
The Supreme Court of Florida, in Carter v. Carter, 20 Florida, 558 (S. C., 51 Am. Rep., 618), in a most able and elaborate opinion, held, viz. •, “In view of the recognized policy of the States in enacting exemption laws, and of the practically universal concurrence of the authorities on the identical question, our conclusion is that the waiver of the benefit and protection of the exemption laws contained in this note is not valid to defeat a claim of exemption.” See, also, Crawford v. Lockwood, 8 How. Pr., 547.
The result of our examination is that the main current of judicial enunciation is against the validity of such contracts. Possibly the only Court out of line is that of Pennsylvania. Such contracts are also sustained in Alabama, but under the authority of an express statute. Brown v. Leitch, 60 Ala., 313. We think the weight of reason as well as authority is opposed to such stipulations. In our view, it is immaterial whether the contract is made by a single man or the head of a family. In either case it contravenes a sound public policy, and, if enforced, abrogates the exemption statutes.
The judgment is affirmed.