Simonds v. Gulley

7 Ala. 721 | Ala. | 1845

GOLDTHWAITE, J.

— The statute under which the plaintiff herb claims exemption for his property from execution, is somewhat peculiar in its terms. It directs that two beds and furniture, two cows and calves, two spinning wheels, two axes, two hoes, five hundred weight of meat, one hundred bushels of corn, all the meal that may at any time be on hand, two ploughs, one table, one pot, one oven, two water vessels, two pair of cotton cards, all books, one churn, three chairs, one work horsey mule, or pair of Work oxen, one horse or ox cart, one gun, all tools or implements of trade, twenty head of hogs, one thousand pounds of fodder, one loom, one man’s and one woman’s saddle shall be retained by, and for the use of, every family in this State, free and exempt from levy or sale, by virtue of any execution or other legal process. [Clay’s Dig. 210, § 47.] In Allen v. Manasse, 4 Ala. Rep. 555, we were called on to construe the meaning of the term family, as it here occurs, and then said, “ the exemption is not conferred on the property of every person; and it seems clear that a debtor, merely as such, is not considered; it is only when connected with others, that protection is cast around his property, and this is, that those dependant upon him may not be injured by his destitution.” It is impossible, we think, that the legislature intended to protect the property of a debtor, when his wife residing with him, is in the enjoyment and use of the very articles, which it is the chief motive of the statute to prevent the family from being dispossessed of, and thus reduced to a condition of comparative destitution. It cannot be well supposed, that the wife’s separate estate, left either in her own or her husband’s possession, can remain so, and present a case which the statute intended to provide for. The family in this case, has the property retained which the act contemplates, and there is no destitution, whether it belongs to the husband, or is secured as a separate estate of the wife. The statute, it is conceived, will equally protect the wife’s separate estate, although she might, by her contracts, subject her property to an execution, or decree in Chancery, if the seizing of any of the exempted articles would leave the family destitute. So doubtless, it might, under such circumstances, be seized and sold, if the husband had similar property not subject to the decree against his wife’s separate estate.

We are satisfied that the intention of the statute is only to exempt property in cases, when, without the exemption, the family would be destitute.

Judgment affirmed.