Cole v. Stevens — 9 Barb. 676

Majority

p. 676

Monroe General Term,

December, 1851.

Welles, Selden, and Johnson, Justices.

Cole vs. Stevens.

Headnote

Property exempt from' execution, by the provisions of the revised statutes, can not be taken on an execution issued upon a judgment rendered for the purchase price of other exempt property.

The provisions of the revised statutes in regard to property exempt from execution, are not affected by the additional act of 18-12.

The case of Mathewson v. Weller, ( 3 Denio 52 ,) so fitr as it seems to hold a different doctrine, overruled

This was an action commenced in October, 1848, before a justice of the peace of Wayne county. The plaintiff claimed to recover for the taking by the defendant, of necessary beds and bedding, one table and six chairs, being property exempt from execution by the revised Statutes, the plaintiff being a householder. The defendant justified the taking, as constable of the town of Palmyra, under and by virtue of an execution issued by Isaac E. Beecher, Esq., a justice of the peace of Palmyra, upon a judgment rendered against the plaintiff for the purchase price of a cook stove and furniture; which stove, with its furniture, was exempt from execution by the revised statutes; it being the only one in use by the plaintiff, in his family. The above facts appeared in proof. In the course of the trial before the justice, a witness, Mesick, was asked the question, whether the beds and bedding were necessary to the plaintiff, in the state of his family ? To which question the defendant’s counsel objected. The objection was overruled, and the witness answered, “they were.” The witness further stated : “ The plaintiff had six persons in his family; he had three beds, two of them were the ones that were taken; the sheets and other bedding were taken from the same beds. His family consisted of two sisters-in-law, two children, and himself and wife; the oldest child was about three or four years old; the straw beds were under the feather beds.” On his cross-examination, the witness testified that the plaintiff had no othér bods besides these tlirée, in the house. The sis

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ters-in-law had no other home ; were grown up; the beds were in plaintiff’s possession.”

A judgment was rendered by the justice, in favor of the plaintiff, for the value of the articles taken. An appeal was taken from the justice’s judgment to the county court of Wayne county, in which court the justice’s judgment was affirmed; and the judgment of the county court was brought by appeal to this court.

T. R. Strong, for the appellant.

1. The justice erred in allowing the question to be put to the witness Mesick, as to the beds being necessary to the plaintiff. (4 Barb. S. C. Rep. 256, 261, andcases cited 4. Denio, 370. 1 Id. 281.) 2. The justice erred in giving judgment for any amount in favor of the plaintiff; it appearing in the proof that the property in question was taken by the defendant as constable, by virtue of an execution in due form, on a valid judgment against the plaintiff, rendered for the ■ purchase money of property exempt from execution. The exemption laws do not extend to such a case. (2 R. S. 367, § 22. Laws of 1842, ch. 157, § 1, p. 193. Mathewson v. Weller, 3 Denio, 52 . Danks v. Quackenbush, 1 Comst. 129,136,137.)

S. R. Williams, for the respondent.

1. The property levied on, and for the value of which judgment was rendered, was not. liable to seizure and sale under execution. (Sess. Laws of 1842, p. 193, ch. 157. Mathewson v. Weller, 3 Denio, 53 . Quackenbush v. Danks, 1 Id. 129 . Danks v. Quackenbush, 1 Comst. 129,133.) The authority of a decision is- co-extensive only with the facts upon which it is made. ( 12 Wheat. 333 .) The legislature did not intend to abridge and destroy, but to extend the privilege of debtors. The statute should, consequently, be so construed. (Sen. Doc. of 1842, vol. 3, No. 76. Assent. Doc. of 1842, vol. 7, No. 145. Sen. Doc. of 142, vol. 3, No. 81.) 2. The question to the witness Mesick, as to the beds being necessary, was properly allowed by the justice ; but if not, the other testimony of the witness to the same point, is amply sufficient to sustain the judgment. (McAllister v. Reab, 4 Wend. 487 , 489. Reab v. McAllister, 8 Id. 117, per Senator.

This case depends entirely upon the construction to be given to the act of 1842, exempting from levy and sale upon execution, property to the value of $150, in addition to that previously exempted by the provisions of the revised statutes. The other questions in the case are of no moment. Although the question put to the witness Mesick, was objectionable, as calling for the opinion of the witness instead of the facts in regard to the situation of the defendant’s family; yet the answer gave fully the very facts concerning which the inquiry should have been made. It is true, the witness prefaced his statement of facts by giving his own opinion ; but the facts stated would seem to justify it, and to be amply sufficient to warrant the justice in coming to the conclusion he did, without relying at all upon the opinion of this witness. It does not appear to have been a point controverted upon the trial; and I do not thin k substantial justice” would be promoted by reversing the judgment upon that ground.

What, then, is the true construction of the act referred to ? The case of Mathewson v. Weller, ( 3 Denio, 52 ,) in which this question was first presented, and in which the late supreme court expressed its opinion upon it, has given rise to considerable discussion of the point. Three different interpretations have been contended for. (1.) That the effect of the proviso is, that property otherwise exempt, shall not be protected from an execution on a judgment rendered for the purchase money of that identical property; (2.) That property exempted either by the revised statutes or by the law of 1842, shall not be exempt from an execution issued to Collect the purchase money of any property exempt by any law. (3.) That the additional' exemption

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allowed by the act of 1842, shall not extend to executions issued to collect the purchase money of any exempt property whatever.

The first of these constructions is founded rather upon what it would seem reasonable that the legislature should have enacted, than upon any sound interpretation of the language of the section. To sustain either this, or the second construction above given, it is indispensable to assume that the words “ such exemption,” used in the proviso, refer as well to the exemption under the revised statutes, as to that allowed by the section itself. But if that be assumed, for aught I see, we must adopt the second of the above constructions; and that is the conclusion to which the court seem to have arrived in Mathewson v. Weller, above cited. But this construction not only leads to some consequences which conflict entirely with the general scope and object of the act, but seem to me not to conform either to the natural or grammatical interpretation of its language. The ordinary rules on the subject, would require that the words “ such exemption” should be referred to the nearest antecedent, even if there were more in the same sentence to which it might by possibility refer. Here, however, there is but one exemption allowed by the entire section, to wit: That of property amounting to $150, in addition to the exemption by prior acts. There is a reference, it is true, to articles previously exempt; but ño exemption of such articles by this act. To sustain the construction contended for, therefore, it is necessary to travel out of the act-itself, and refer the words in question in part to the provisions of the revised statutes. I can not think that any rule' of interpretation would warrant this. The natural reading of the clause seems to me clearly to be, that the exemption allowed by the section itself, shall not be available against any execution issued to collect the purchase money of any exempt property whatever.

As the property taken in this case was exempt by the revised statutes, and not by virtue of the law of 1842, the conclusion to which I have arrived, shows the judgment of the justice and of the county court, to be correct.

. The judgment must, therefore, be affirmed.

Cases cited

Mathewson v. Weller 3 Denio 52 N.Y. Sup. Ct. p. 676