Weis v. Levy , 69 Ala. 209 ( 1881 )

BBICKELL, O. J.

The point of contention in the Circuit Court seems to have been whether the right of the appellant to an exemption of personal property, was not exhausted by a former claim and allotment to him, when a prior attachment in favor of Lyons & Co. was levied in Escambia county or whether the fact that a part of the property then claimed, 'had been taken from him by judicial process, entitled him to an exemption of -other property, so that he would have one thous- and dollars worth of personal property of his own selection, which he could retain free from liability to his debts. It is the right of every debtor, secured by the constitution and by the statute enacted for the purpose of giving full effect to the constitutional provision, to select from all the personal property he may own, any part thereof, not exceeding one thous- and dollars in value, and to hold and retain it, exempt from levy and sale under judicial process for the payment of d.ebts. It is a simple exemption of personal property of the value of one thousand dollars, selected by the debtor, the statute and constitution contemplate. At the same time he can not have more than one such exemption, as at the same time he can not have more than one homestead. When the exemption has once been claimed, the property selected by the debtor, and allotted to him, so long as he retains it, and it is undiminished in value, he is without right to a further exemption ; otherwise double exemptions could be claimed and the whole of his property exhausted, 'to the prejudice of his creditors. But if the property allotted to him has been taken from him without fault on his part, or it has been consumed in maintaining himself or family, a subsequent exemption may be claimed. It is his right to have and hold, at all times, an exemption of personal property of the value of one thousand dollars, of his own selection, free from liability to debts. When the property which he had selected has been lost to him, or has deteriorated in value, without fault on his part, or has been consumed in the maintenance of himself or family, or applied by'him to the payment of debts, the right secured to him would be impaired, if he could not select and retain property, notwithstanding the former claim of exemption. The rights of creditors are not impaired, so long as the debtor is not permitted to hold property exceeding in value one thous- and dollars. — Ala. Conference v. Vaughan, 54 Ala. 443.

If he were to. dispose of fraudulently the property he had claimed and retained, with the view, and for the purpose of obtaining an additional exemption, perhaps his claim would be disallowed.

In the rejection of the evidence offered tending to show that a part of the property formerly claimed and allotted to the appellant, had been taken from him by judicial process, and that at the time he interposed the present claim, such of that property as remained in his possession did not exceed in value one thousand dollars, the Circuit Court erred.

The other questions presented by the record are not of importance, and may not arise again in the progress of the cause. It is not necessary to consider them specially. The transcript from the court of probate of the declaration of exemption filed by the appellant, was properly admitted. — Beggs v. State, 55 Ala. 108; Bishop v. State, 30 Ala. 34.

For the. error noticed, the judgment is reversed and the cause remanded.