Wood v. Bowles

46 So. 414 | Miss. | 1908

Mayes, J.,

delivered the opinion of the court.

It has been the unbroken authority in this state, since the decision of the case of Trotter v. Dobbs, 38 Miss., 198, that a judgment debtor may successfully interpose his claim of exemption as against the execution creditor at any time before actual sale, if the right to claim exemption exists at that time. In the case of Dulion v. Harkness, 80 Miss., 9, 31 South., 416, 92 Am. St. Rep., 563, it is held that there is no difference between judgments at law and decrees in equity as to this right. In the case now before the court the contention is that, because the claims forming the foundation of the decree were for rents and profits due the appellants and arising out of the common estate owned by them before partition, and because the court in making the decree for partition in kind adjudged certain amounts to be due appellants as rents and profits owing them by appellee, and made tbe sum so adjudged a charge upon the separate interest of appellee after partition, a different rule is to be applied. We cannot assent to this. The decree is subject to be defeated in its execution by the same things which would defeat any other decree or judgment. If the property claimed to be exempt is of greater value or quantity than the judgment debtor is entitled to claim, the bill does not show it; and it is therefore a matter of proof, and not the proper subject of demurrer.

The court below having overruled the demurrer, its action is affirmed, and the cause remanded, with leave to answer in thirty days after mandate filed.

Affirmed. •

Whiteield, J., took no part in the decision of this case. •