57 Md. 314 | Md. | 1881
delivered the opinion of the Court.
This is a suit upon a sheriff’s bond for an alleged failure of that officer, in the levy of an execution and sale of property thereunder, to allow the defendant in the execution the benefit of the exemption law of 1861, ch. 7. The questions, which are presented solely by the pleadings, involve the construction and effect of the first and second sections of that Act.
The first section declares, “that one hundred dollars worth of property of each defendant therein, shall he exempt from execution issued on any judgment in any
1st. That property only shall - be exempted, and the debtor has no right to demand an equivalent in money therefore. This is manifest from the language used. The exemption is of property, and the right to select the property to he exempted is given to each defendant in the execution. Money arising from the sale can he given to him only under the. special provisions of the third section by which it is provided, “that if any property of any defendant, whether real or personal cannot he divided, so as to set apart a portion of it of the value of one hundred dollars, without loss and injury to all parties concerned, then the whole shall he sold, and the defendant whose property is sold shall have one hundred dollars of the proceeds in money, and whether the property can he divided without loss shall he determined by the appraisers ; ■this section only to apply to cases where a single parcel of land, or single article of personal property is levied on,
2nd. The exemption with the right to select the property to be exempted, is a privilege that may be waived by the party for whose benefit it was intended, and it seems to us clear that the statute contemplates some active interposition on the part of the debtor, in order to entitle him to the benefit of the exemption. It declares that the property “shall be exempt,” but at the same time provides that the debtor may “ select the property,” sought to be exempted. Selection is a privilege conferred upon, and an act to be performed by the debtor. There is nothing in the statute requiring the officer to notify the debtor of the execution and levy, and the only reasonable mode of enforcing the law seems to be this: The sheriff or other officer having the execution in his hands is bound to, and must levy, in obedience to the command of the writ. The defendant must then interpose, claim the exemption and make the selection, and it thereupon becomes the duty of the officer to summon and swear the appraisers. The precise time when this claim and selection should be made is not specified. It might be said in strictness that the terms “ shall be exempt from execution’’ require that the debtor should avail himself of the privilege at the time of the levy, but if this should bo regarded as too narrow a construction, it is plain that there must be some period fixed at which the claim should be made, and after which it cannot be made. The debtor cannot, as we have shown, stand by and permit the sale to go on, and then claim the hundred dollars, in money out of the proceeds. It is as easy for him to make tho
It follows from these views that there was no error prejudicial to the equitable plaintiff upon the demurrers of which he complains, and the judgment must he affirmed.
Judgment affirmed.