108 W. Va. 58 | W. Va. | 1929
The question involved in this writ of error is whether a diamond ring worth about $1,000.00 owned by an execution debtor and worn habitually by her is subject to sale under the lien of the execution.
On May 27, 1926, the circuit court of Logan county rendered judgment in favor of Ohio Valley Bank against Nan D. Minter and others for' the sum of $20,080.00. Execution was issued thereon the 8th day of the following November and went into the hands of the sheriff. In pursuance to section 4 of chapter 141 of the Code, the court, on April 6, 1927, directed a summons to be issued for defendant, Nan D. Minter, to appear before a commissioner in chancery to answer interrogatories which might be propounded to her concerning her estate subject to execution lien. On that day she reported by counsel that she then owned and was wearing a diamond ring which she had owned for a number of years prior to the rendition of the judgment and which she was then wearing as a part of her usual wearing apparel, and claimed the ring
An execution in the hands of the proper officer is a lien on all the personal estate of the debtor from the time it goes into the officer’s hands, although not levied on or capable of being levied on, except such estate as may have been listed and set apart as exempt from distress and levy under the provisions of law; and property in the hands of an innocent purchaser for value without notice of execution, as provided in section 2, chapter 141, Code. How then can she avoid the lien of execution? She does not attempt to exempt it under any provisions of our statutory law for there is no statute which exempts from levy of an execution wearing apparel or the like on the person of the judgment debtor, and it does not appear that she is a parent and therefore qualified to claim personal property exemption under section 23, chapter 41, Code. But she places her reliance for relief against the enforcement of the lien of the execution on the common law rule, that it is against public policy for an officer to search the person of the debtor, and take from him articles thereon found, which procedure on the part of the officer would tend to create breaches of the peace and disrupt good order and decorum of society. To sustain this proposition her counsel cites Mack v. Parks, 8 Gray (Mass.) 517, 69 Am. Dec. 267; Maxham v. Day, 16 Gray (Mass.) 213, 77 Am. Dec. 409. Those cases are to the effect that a sheriff holding an execution is not permitted to seize wearing apparel or other property on the person of the execution debtor, the reason therefor being that such procedure would tend to breaches of the peace and assaults. This was the reason at common law for the rule. These decisions have little application to this case, for the sheriff had not
Reliance upon tbe common law by an execution debtor to escape tbe lien of execution is rather precarious. Tbe common law was rather harsh towards debtors, even putting them in jail when they were unable to pay, a drastic procedure which shocks tbe enlightened modern conscience, but it serves to illustrate tbe scant consideration given to an unfortunate debtor. At common law a man’s clothing cannot be taken off bis back in execution of a writ of fieri facias. Sungolf v. Alford, 3 Mee. & W. 253. Tbe main reason for that rule, as above stated, is that such a taking would tend directly to collisions and breaches of tbe peace. But if clothing was not being worn it seems that at common law it could be levied upon and taken. Freeman, Executions, secs. 232 and 255. A lien of an execution at common law extended to all of tbe personal estate of tbe debtor, and our statute is but declaratory of tbe common law in that regard. It seems that tbe common law cared very little for tbe debtor, but cared more particularly for public tranquility. Gorton v. Falkner, 4 T. R. 565. Tbe common law, if not changed by our constitution or laws, is in force in this state; and it may be conceded that an officer with an execution cannot levy on and take from tbe execution debtor wearing apparel on tbe person, or other article of personal adornment in actual use on tbe person. But that is not tbe situation before us, for tbe sheriff has neither levied nor attempted to levy on tbe diamond ring. Tbe statute above cited by which personal property in tbe
In the evolution of English and American law, imprisonment for debt has gone into the discard, and statutes have been passed which allow the debtor to claim exemptions from the lien ánd levy of an execution. It may be observed that our statute exempting personal property from execution to the extent of $200.00 value does not, in specific terms, include wearing apparel. Many of the statutes of our sister states do so. And there is quite a diversity of opinion' among the courts as to what constitutes “wearing apparel”. This diversity has arisen in the interpretation of statutes exempting wearing apparel from seizure and sale; in the interpretation of wills; and under the bankruptcy statute. In Bank v. Robinson, (Tex.) 124 S. W. 177, 179, a diamond ring worn on the finger was held to be exempt under a statute exempting wearing apparel from execution; under a similar statute exempting all wearing apparel from execution, rings and jewelry usually worn on the person and for that reason out of the
¥e conclude, that we have no statute exempting wearing apparel from the lien of a fieri facias; that the common law ■against forcible taking of such articles from the person remains with us, not having been changed by our laws expressly or impliedly, and that our statute, above set out, furnishes a procedure by Avhicli personal estate in the possession of the execution debtor may be reached by a creditor without the risk of personal conflict and breaches of the peace between the debtor and the officer. Moreover, if we take the view that it is
Affirmed.