Brown v. Leitch , 60 Ala. 313 ( 1877 )

STONE, J.

When the note which is the foundation of the present suit was executed — April 8, 1874 — the constitution of 1868, art. xiv., section 1, and the act “ to regulate property exempted from sale for the payment of debts,” approved April 23, 1873 — Pamph. Acts, 64 — defined the right and measure of exemptions. The language of the constitution is : “ The personal property of any resident of this State, to the value of one thousand dollars, to be selected by such resident, shall be exempted from sale on execution, or other final process of any court, issued for the collection of any debt contracted after the adoption of this constitution.” The language of the statute is: “ That the personal property of any resident of this State, to the value of one thousand dollars, i» be selected by such resident, shall be exempted from levy and sale under execution, or other process for the collection of debt.” In Miller v. Marx, at December term, 1876, we decided, that the exemptions secured under the constitution of 1868 were constitutional legislation, and self-executing. There is no material difference in the clause of the constitution of 1868, and the section of the statute of 1873, copied above.

In the note sued on in this case is the following clause: “And in consideration of supplies furnished, for which this note is given, [I] .hereby waive all right to exemptions under the laws of the State of Alabama.” The appellant contends, that this waiver is valid as to the personal property of the debtor; and this presents the only question in this cause. It will be observed that- the -words, “ to be selected by such resident,” are found alike in the constitution and in the statute. The claim and selection must be made by the defendant himself; and if he fails to assert the claim, he thereby forfeits it.—Ross v. Hannah, 18 Ala. 125; Gresham v. Walker, 10 Ala. 370; Bell v. Davis, 42 Ala. 460. The right to claim personal property as exempt is a mere personal privilege.—Mickles v. Tousley, 1 Cow. 114; Earl v. Camp, 16 Wend. 563; Smith v. Hill, 22 Barb. 656; Dodson's appeal, 25 Penn. St. 232; Eberhart’s appeal, 39 Penn. St. 509, 513; Com. v. Boyd, 56 Penn. St. 402.

In Bowman v. Smiley, 31 Penn. St. 225, the court said: “ Notwithstanding the doubts which have been sometimes expressed, it is now generally conceded, that the statutory privilege of the exemption of a portion of his property, from levy and sale under execution, is one which a debtor may waive. When made at the time the debt is created, the waiver is based upon the same consideration as that upon which rests the liability to pay, and is therefore irrevocable. Such a waiver is a contract, that, so far as regards the judgment creditor in whose favor it is mad'e, the debt shall be collectible in the same manner as if the act of April 9, 1849, had never been passed.”

In Bibb v. Janney, 45 Ala. 329, a laborer had drawn an order, or bill of exchange, on his employer, to be paid out of his -wages; and the question was, whether this was a waiver of his right to claim this sum due him for wages, as exempt under the statute. This court said : “ The drawing of the bill of exchange on Janney, if not an absolute appropriation of the money due by.him to the drawer, was at least a waiver of its exemption from application to his debts under legal process. Otherwise, it would open a door to fraud, and create distrust, which often would be as damaging to the debtor as to tbe creditor. What else can the debtor mean by drawing on bis wages, than to declare to the person with whom he deals that he will not assert any existing right he may have to the funds, to the prejudice of his creditor, from whom he is then receiving a valuable equivalent ?” And the claim of exemption was disallowed. — See, also, Smyth on Exemptions, § 535.

The exemption of personal property, under the provisions of the constitution and statute copied above, is to residents of this State. No other person than such resident is mentioned as having any interest in the exemption. It is manifest that the owner of such exempt personal property can sell, and thus part with such property, and no other person can gainsay his right. When the owner dies, his claim of exemption of personal property is not transmitted, but dies with him. True, if he has a wife or minor child, an independent right of exemption, in some conditions, springs up; but tbis is a right secured to such wife or minor child, not a continuance of the husband’s right.—See Childs v. Jones, at present term. We tbimk the waiver in the present case must be held valid and binding.

The judgment of the Circuit Court is reversed, and a judgment here rendered, adding to the judgment-entry this clause: “And against this judgment, and the execution to be issued thereon, there is no exemption of personal property of the defendant.”

Let the appellee pay the costs of this appeal.