| Ala. | Jun 15, 1871
Lead Opinion
The issues made in this record do not involve any question of constitutional power to make the exemption in controversy. Nor do they present any question which puts the policy of exemption laws upon trial. If they did, it seems to me that it would not be difficult to show that in a great republican and agricultural nation, as this is, it is of the utmost importance to the stability and prosperity of the State, that all its citizens, in whom its sovereignty is vested, shall have homes, and the means of support for their families and the education of their children. In such an inquiry, it is to be presumed that a people well educated and diligently instructed in Christian morals, if they are provided with homes and the means of cultivating their farms, will always pay their debts, if indeed such a people do not soon cease to be a debt-owing community altogether. In this country, the people represent the nobility of other nations. And there is no nation of any importance in history, that has deprived its nobility of their homes and the means of a comfortable support, in order to secure the payment of their debts. An English lord or prince would regard it as an assault upon the constitution of their country, to attempt to render his home and the means of his support subject to the payment of his debts. This exemption on their behalf they laud as the safeguard of the state. Why should it be less so here ? The principle in the one case is equally good in the other. It is this : the citizen in whom the sovereignty is vested should be placed in a situation to raise him above the hindrances and the temptations of poverty. In the system from which ours is, in great measure derived, the people are ranged into two classes: the prince in the one, and the subject in the other. Our system makes all princes, and all are alike entitled to the exemptions to which princes may claim to be entitled. A home, and the means to make it useful, and some degree of intelligence, are elementary necessities of the governing classes. With us, all belong to this class. — Deck Indep.
The courts, having no legislative powers here, have simply copied so much of the English commercial system
The courts must execute the laws. In this State, their officers are solemnly sworn “honestly and faithfully to support and defend the constitution and laws of the United States, the union of the States, and the constitution and laws of Alabama.” — Const. Ala. 1867, Art. XY. It scarcely needs an argument to show that to “ support ” a law means to enforce it, and to prevent any failure of the purpose for which the legislative authority brought it into being. If a law is permitted to fail of its purpose, it is rendered of no effect. Then it can not be said to be supported.
Among the duties courts have to perform, it is said, with them, that there is no right without a remedy. Ubi jus, ibi remedium. — Co. Litt. 197; 1 Term R. 512; 3 Bouv. Inst. n. 2411. And where the court may rightfully deal with the subject of controversy and the parties, and there is a right to be investigated, and the law has not prescribed a rule of practice, it is competent for the court to prescribe its own practice. Hence it is said, “ the practice of the court is the law of the court.” Gursus curiae est lex curice. Broom Max. 126. Besides, the court “ may amend and control its process and orders so as to make them conformable to law and justice.” — Rev. Code, § 638, cl. 6.
Property which the “ constitution and laws ” of the State exempt for the use of the debtor and his family can not be said to be liable to seizure for the payment of his debts. And the creditor who contracts with a debtor knows, at the time of the contract, that the exempt property is freed from all liability for payment of any save certain specified
Here there can be no doubt of the appellee’s right. The proofs show that he is a resident of this State, and the head of a family. The language of the constitution fixing the exemption is as follows: “ The personal property of any resident of this State to the value of one thousand dollars, to be selected by such resident, shall be exempted from sale' on execution, or other final process of any court, issued for the collection of any debt contracted after the adoption of this constitution.” — Const. Ala. 1867, Art. XIY, § 1. In addition to this, there is a similar provision in the Eevised Code, which exempts pne thpusand dollars worth of personal property. — Rev. Code, § 2884. This exemption is said-to be “.a valuable legal right,” and the laws for its support and protection have always been liberally construed. — Ross v. Hannah, 18 Ala. 125" court="Ala." date_filed="1850-06-15" href="https://app.midpage.ai/document/ross-v-hannah-6504319?utm_source=webapp" opinion_id="6504319">18 Ala. 125, 127; Favers v. Glass, 22 Ala. 621" court="Ala." date_filed="1853-01-15" href="https://app.midpage.ai/document/favers-v-glass-6505056?utm_source=webapp" opinion_id="6505056">22 Ala. 621, 624; Watson et al. v. Simpson, 5 Ala. 233; Noland v. Wickham, 9 Ala. 169" court="Ala." date_filed="1846-01-15" href="https://app.midpage.ai/document/noland-v-wickham-6502783?utm_source=webapp" opinion_id="6502783">9 Ala. 169; Salee v. Waters, 17 Ala: 482; Cook v. Baine, 37 Ala. 350" court="Ala." date_filed="1861-01-15" href="https://app.midpage.ai/document/cook-v-baine-6506892?utm_source=webapp" opinion_id="6506892">37 Ala. 350. It is the duty of the court, then, to support and enforce this law until it is repealed. — Adm’r of Brewer v. Granger et al., in MS.; Ray v. Adams, 45 Ala. 168" court="Ala." date_filed="1871-01-15" href="https://app.midpage.ai/document/ray-v-adams-6507918?utm_source=webapp" opinion_id="6507918">45 Ala. 168.
This proceeding is analogous to that of several parties claiming the same fund in different rights, as upon a motion or cross bill, where the subject matter of the controversy and all the parties are within the jurisdiction of the court. No injustice can be done by such a practice. All the parties can be heard, and in the manner appointed by law :• by a public trial before the court and jury. This is all that the law secures, and all that justice requires.— Const. Ala. 1867, Art. I, §§ 15, 13; 20 Ala, 140, 214. There is no authority given bylaw to the officer who makes the collection of the money in controversy to allow the exemption. But he can bring the money into court on the
Therefore, let the judgment of the court below, as corrected, be affirmed.
Dissenting Opinion
(dissenting.) — I. The novelty of the question . here presented, at first blush, would seem to involve its de
1st. Let it be borne in mind that the right, if it may properly be called a right, of a head of a family to have any of his property exempted from levy and sale for the payment of his debts, is purely statutory in its character, and has no existence independent of the statutes by which it is given.
2d. Being a statutory right, it can only arise in the cases named in the statutes, and must be made within the time, and in the manner, and in the cases therein prescribed.
3d. It is a right, in every case, personal to the head of a family, and must be claimed by himself, and by no body else, and it must be made before a sale of the property; otherwise the right is lost. He can not claim or have the money arising from the sale, because the statutes do not say so.
4th. The claim is a pure matter of grace, and not of debt ; therefore, the beneficiary must take what is given and be content; he can have nothing more. And this should be so, for the reason that it is of grace and not of debt; and for the further reason, that the State, in this matter, is generous — not with her own, but with what, on the highest principles of morality, should belong to another; for every dollar a debtor is in this way permitted to withdraw from the payment of his honest debts, is a dollar, first or last, taken from the pockets of the creditor.
The present enormous system of exemption laws, in the beginning, grew out of the purest feelings of philanthropy and good will, and was intended to help the poor, and to encourage them in the ways of honesty, industry and economy, and to secure to them the enjoyment of the common • comforts and decencies of life, and thereby enable them to improve their condition.
Eor this purpose these laws wisely confined exemptions to a few necessary articles of daily family use, including among them the usual implements of husbandry, with a beast for the plow, and the tools of the mechanic; but this
The result of all this is, that the poor, instead of being benefited by these laws, and their best good and prosperity promoted, are being seriously injured by the destruction of the trust and confidence that once existed, not only between them and their better-off neighbors, but also among themselves. Trust and confidence is the very life — the foundation of neighborhood commerce, without which no people, especially the poor, ever prospered or can prosper.
Moderate and discreet exemption laws are both just and right in themselves, and are, no doubt, a great benefit and blessing to that portion of the people for whom they were first intended; but. for myself, I desire to set my seal of disapprobation upon the extravagant lengths to which these laws have been extended by the legislation of this State.
II. I will now refer to the sections of the Revised Code upon which this opinion is based.' Section 2880 provides, that “ the following property may be permanently retained for the use of every family in this State, exempt from levy and sale, by any legal process.” Then follows a list and description of the property so exempted, both real and personal, the value of which, according to the very lowest estimate, can hardly be less than fifteen hundred dollars.
This would seem to be enough to enable a prudent and industrious family to make a comfortable living.
1st. This property is to be selected by the head of a family, and valued by three disinterested persons, to be selected by the sheriff, or other person levying the process, So stood the law on this subject until the 19th of February,
By these sections we see that the property thus exempted is property that may he levied upon and sold by the sheriff or other officer, under process in his hands for that purpose.
2d. That only such property is exempted as shall be in the possession of the head of the family at the time of the levy, and which must be selected by him, after the levy, and before the sale thereof.
By section 2883, the value of the property so exempt must be ascertained by three disinterested persons sum- ' moned by the sheriff, or other officer levying the process. It follows, from this, that the property so exempt must be property, not only liable to be levied upon and sold, but must also be property possessed by the head of a family; for if not possessed, it can not be retained, and, furthermore, it must be levied upon before the sheriff, or other person levying. the process, can proceed to have its value ascertained by the persons to be summoned for that purpose.
3d. The question now arises, what property may be levied on and sold, by execution or other legal process ? By section 2871, Revised Code, we see that “ things in action” can not be levied on and sold. By “ things in action” is understood “choses in action.” The word “choses” means things. All debts are choses in action, and, therefore, things in action are not liable to be levied on and sold, and, consequently, not such property as can be reserved or retained for the use of a family, under the exemption laws.
That was the purpose of the motion in this case. The appellee in the circuit court sought to have the money that might be collected by the appellant out of the property of the garnishee, on his judgment against the garnishee, paid to him, under the laws exempting certain property from levy and sale, for the use of his family. This could not