Jordan v. Autrey , 10 Ala. 276 ( 1846 )

COLLIER, C. J.

The act of 1833 enacts, that “one work horse, mule, or pair of oxen, one horse or ox-cart,” &c. “ shall be retained by, and for the use of every family in this State, free and exempt from levy and sale by virtue of any execution, or other legal process.” [Clay’s Dig. 210, <§>47.] The question presented in the present case, arises upon the charge of the court, and is this, can a party who has pointed out property exempted by the act cited, to an officer having an execution against his goods and chattels, and upon a levy being made, executed a forthcoming bond, afterwards object to the sale, and claim the privilege which the act aífords ?

There can be no question that Wallace v. Collins, 5 Ark. Rep. 41, cited by the counsel for the plaintiff in error, favors the idea, that consent being given to the seizure cannot af-terwards be recalled. We understand the court there to say, that where a defendant in execution delivers personal property to an officer, who had levied on it, his property was divested and he could no longer forbid the sale, unless he satisfied the execution in some other way. We have not examined with care the facts of that case, but are satisfied that the principal laid down cannot be maintained in the unlimited terms in which it has been stated. If third persons would be affected by the withdrawal of the assent of the defendant in execution, perhaps he should not be permitted to claim the statutory exemption for property which he had pointed out or delivered to the officer. But the mere waiver of the statute privilege, uninfluenced by any thing extraneous, may be revoked. We can discover nothing in reason, or legal analogy to prove the reverse, where the levy is assented to, or even approved, unless there is some consideration for it, either of benefit to the defendant in execution, or injury, actual or threatened, to the plaintiff, or some one else. If, in the case at bar, the party' had other property which could have been seized to satisfy the execution, at the time the levy was made, which was placed beyond the reach of process, before the sale day, then perhaps the exemption could not afterwards be claimed. But there is nothing in the record to indicate that such was the fact; if it was, the party who would avail himself of it to estop the defendant in execution, should have shown it.

The view we have taken is sustained by Wallis v. Trues-del, et al. 6 Pick Rep. 455, in which it was explicitly held, that a license by the defendant to sell certain property under execution, unless there is a consideration for it, or something which the law deems an equivalent, may be revoked, and the license does not operate as an estoppel. So it has been adjudged, that if a levy was assented to under an impression of all parties that it was regular, yet if the property was not seizable uuder execution, the assent being made under a mistake can’t affect the right of property in favor of the plaintiff. [Rogers v. Collier, 2 Bailey’s Rep. 581.]

In the case at bar, the plaintiff in error can’t be considered as occupying a more favorable position than the plaintiff in execution. He should rather be taken to stand in the same predicament; for it is distinctly stated, that he induced the sale by the execution of an indemnifying bond to the constable.

As to the delivery bond, it cannot be regarded as constituting a material feature in the cause — it was executed only to secure the possession of the property to the defendant in execution, until the day appointed for its sale ; and had no other effect, either to impair or strengthen the legal consequences of the levy.

It results from what has been said that the law was correctly ruled by the circuit court — its judgment is consequently affirmed.