Yates v. Gransbury , 9 Colo. 323 ( 1886 )

Elbert, J.

The plaintiff Gransbury, at the time of the levy of the execution by the defendant, was the-owner of two wagons. The statute exempted but one. He had a right to select which of the two he would retain as exempt from execution; but having selected the one levied upon by the officer, it was his duty, so far as lay in his power, to surrender the other wagon, that the sheriff might levy upon it. Freem. Ex’ns, §212; Smothers v. Holly, 47 Ill. 331; Bonnell v. Bowman, 53 Ill. 460; Robinson v. Myers, 3 Dana, 441; Keybers v. McComber, 7 Pac. Rep. 838. There is no doubt, on the testimony, that the effort of the plaintiff, at the time of the levy, was to retain both wagons by concealing the one, and by claiming the other as exempt under the statute. He refused to give the officer any satisfactory information respecting the whereabouts of the wagon not levied upon. He admitted its ownership; and made no claim that it was not within his reach and entirely under his control. The statute was beneficently intended to protect the judgment debtor in the use and enjoyment of certain specified property, not to protect him in a fraud against the judgment creditor. The plaintiff had a right to select and retain one of the wagons as exempt, but he had no right, either directly or indirectly, to select and retain both. Having concealed one, his selection and demand of the other was fraudulent, and the refusal of the officer to regard it affords no ground for recovery under the statute.

The judgment of the court below is reversed.

Reversed.