Simpson v. Simpson , 30 Ala. 225 ( 1857 )

RICE, C. J.

Section 2462 of the Code declares, that one work horse “may be permanently retained, for the use” of any family in this State, exempt from levy and sale under legal process. The right thus to retain him is not complete, until it is asserted. If it is not asserted before he is sold under execution, it is lost. — Gresham v. 'Walker, 10 Ala. 370. If it is asserted before he is sold, it thereby becomes complete, and-the family cannot after-wards be deprived of his use by a levy or sale under any legal process. But if, after the exemption is thus claimed and becomes complete, he is sold by the head of the family, “and taken possession of by the purchaser,” he thereby becomes and “is liable for the debts existing [against the head of the family] at the time the exemption was claimed.” As soon as such purchaser deprives the family of the possession of the horse, the owners of such debts may seize and sell him under execution for the satisfaction of those debts. The policy of the law is to secure the continuous use of the exempt property to the family, until it is “taken possession of” by such purchaser, or “abandoned by the family, by the death or dispersion of its membersbut on the occurrence of any of these events, to make such property subject to levy and sale for the satisfaction of such debts as existed against the head of the family at the time the exemption was claimed. Code, § 2464, The provision which denies to the head of the family the power to sell such property, would be vain, if the purchaser from him were permitted to take the possession of it from the family, and hold it exempt from such debts. The law discourages every man from becoming such purchaser, by making the property subject to such debts so soon as he takes possession of it.

Under section 2465 of the Code, the officer “levying on property exempt fro m execution, ” is protected from liability “for any damages therefor” unless the affidavit therein prescribed is made. But for all other purposes, and against all other persons, the claim of exemption, when made verbally, is as effectual as when made by such an affidavit. The failure to make that affidavit is a bar to one remedy, to-wit, to the action against the officer for “damages” for “levying” on the property; but it does not take away or bar any other remedy, nor give validity to his sale, if, before that sale was made, there was a verbal claim of the exemption of the property, and the claim was authorized by the existing facts. The making of the affidavit is not one of the facts necessary to make any property exempt from levy and sale. That affidavit is only necessary to give the action for damages against the officer for levying.

The charge of the court is erroneous; and therefore, the judgment is reversed, and the cause remanded.