Borland v. O'Neal

Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring, and Norton, J. concurring specially. This is an action to recover the possession of two horses levied upon by the defendant, as the Sheriff of San Joaquin County, by virtue of an attachment against the plaintiff, who claims them as exempt from levy and sale. The defendant recovered judgment, from which the plaintiff appeals.

The record shows that on the ninth day of March, 1861, the defendant, as Sheriff, levied upon the horses in question, which are described as stallions and race horses, under and by virtue of an attachment against the plaintiff; that at the time the plaintiff resided in El Dorado County, where he had several work horses, which he sold and disposed of after the levy and before the commencement of this suit; that the plaintiff carried on the business of a butcher and farmer, raising and selling horses and cattle; that he had several horses, besides those in controversy, which he used in his farming business; that a judgment was rendered in the suit in which the attachment issued, on which' an execution issued, and on the day of the sale of the property, which was about four months after the levy, the plaintiff appeared, and for the first time claimed them as exempt from execution, and demanded possession, which was refused, and the Sheriff sold the property under the writ.

The plaintiff was entitled to hold two horses exempt from execution, under the third clause of section two hundred and nineteen of the Practice Act. When the debtor has more horses than the number exempt by law, he has the right to elect which he claims as exempt, and such election must be made at the time of the levy, or within a reasonable time after notice of the levy, by giving the officer notice of such election. The officer is under no obligation to hunt up the debtor in advance of the levy, in order to procure a selection by him. (Seaman v. Luce, 23 Barb., S. C., 240; Lockwood v. Younglove, 27 Id. 506.) The debtor waives his right by failing to claim it; and a claim under one execution, when no sale was made under it, is not sufficient when the property was levied upon and sold under a subsequent execution. (Dodson’s Appeal, 25 Penn. State, 232.) The exemption of property from sale on [507]execution is a personal right which the debtor may waive or claim at his election. (State v. Meloque, 9 Indiana, 196.) Where the debtor has several horses, and one is exempt from, execution, he may elect which shall be exempt; but if he has some not in the jurisdiction of the officer, and so beyond the reach of the execution, and there is only one within the reach of the execution, he cannot defeat the creditor’s levy on that one by electing to keep it. Such a course would be using the statute, which was intended for beneficent purposes, as a means of evasion and fraud. (Robinson v. Meyers, 3 Dana, 441.) And where the officer levied on one horse, leaving another in the possession of the debtor as exempt, and the latter on the day of sale claimed the horse levied on as exempt: held, that his proceeding to sell under the execution was not wrongful, unless the debtor should tender him for sale, in lieu of the article levied on, such other articles as he might in the first instance have seized for the satisfaction of the debt, or so much as was certainly and palpably sufficient to discharge the debt, or was at least equal in vendible value to the article claimed to be exempt. (McGee v. Anderson, 1 B. Munroe, 187.)