Wylie v. Grundysen , 19 L.R.A. 33 ( 1892 )

Vanderburgh, J.

It is alleged and found that the plaintiff recovered a judgment against one Wyer for the unlawful taking, removal, and conversion of certain property described in the complaint as wheat, barley, and a certain frame building used as a granary, in which the grain mentioned was stored. It is also alleged, and so found, that the granary was situated upon plaintiffs exempt homestead, and a fixture thereon, and was accordingly exempt from levy and sale. The grain was also found to be exempt. The amount of the judgment so recovered was the sum of $468.76.

An execution was issued to the sheriff defendant in this action for the collection of this judgment March 24, 1891, and on the next day the defendant in the execution paid him, in satisfaction thereof, the amount of the judgment, with interest and costs. Prior to the date-last mentioned, there had been recovered judgments against the plaintiff, amounting to the sum of $267.69, with interest and costs; and executions were duly issued on such judgments to the defendant, as sheriff, on the 23d day of March, 1891, and on that day he undertook to levy upon the first-mentioned judgment, — that is to say, it is found by the court that on the same day the defendant, as such sheriff, and for the purpose of levying such executions, made certified copies of both executions, and served them, together with his return, upon the clerk of the court, and notified the clerk of such levy, but did not serve the plaintiff, judgment debtor in the executions, and judgment creditor in the judgment levied on, until the 30th day of March, 1891. On the 25th day of March the defendant sheriff applied, of the money collected for plaintiff on his judgment,- the sum of $267.69 in satisfaction of the executions against him; and it is to recover that sum as having been wrongfully so applied by the sheriff that this action is brought against him.

1. The exempt homestead included the granary as appurtenant to the premises, and necessary for the use of the family, (1 Freem. Ex’ns, § 245; 1878 G. S. ch. 68, § 1;) and it did not lose its exempt character by reason of its severance from the freehold through the wrongful act of a trespasser. But, the severance having taken place, the owner of the exempt homestead to which it belonged might bring replevin, or sue for its conversion as personal property, — Washburn v. Cutter, 17 Minn. 367, (Gil. 335,) — and the judgment recovered for the value of the grain and the granary in which it was stored may be treated as a judgment for exempt personal property, within the meaning of 1878 G. S. ch. 66, § 313, and accordingly exempt from levy upon execution.

2. But in order to fix a liability upon the sheriff for such wrongful levy upon the exempt judgment he should have had proper notice or a demand should have been made upon him before suit brought against him, unless prevented by his own conduct. This was not shown in the case, but the money was prematurely paid over or applied on the executions before the levy Was completed by the proper notice to plaintiff so as to enable him to make a seasonable demand. Id. § 306. Such payment was unauthorized, and the necessity of proof of a demand was dispensed with.

Order affirmed.

(Opinion published 53 N. W. Rep. 805.)