Butt v. Green , 29 Ohio St. 667 ( 1876 )

Gilmore, J.

The allegations of the answer, in reference to the conduct of Green, the defendant in error, in obtaining a continuance of the original action brought by Young against him, and the placing of fictitious chattel mortgages upon his property the day before the magistrate rendered judgment in the case in favor of Young, are not regarded as material, and may be rejected as surplusage, in considering the questions raised by the demurrer to the answer.

Rejecting these, does the answer state facts sufficient to constitute a defense'to the action?

Or, to make the inquiry more exact: Ho the facts set forth in the answer show that Green, at the time he made the selection, had waived his right to select, and have set off to him as exempt from execution, the particular chattel levied upon and sold by the constable ?

The third section of the exemption act (70 Ohio L. 51) makes it lawful for any resident of this state, being the head of a family, to hold exempt from levy and sale on execution, personal property not exceeding five hundred dollars in value, to be selected by him, his wife, agent, or attorney, at any time before sale.

It is claimed by counsel for defendant in error, that the law is imperative, and that nothing that may have been done or omitted by the debtor, short of a failure to make the selection before the sale, can be so construed as to constitute a waiver of the right of selection given by the statute.

We think this claim untenable. Where a statutory right is personal, it may be waived by the party for whose benefit it was intended.

For examples: The right to challenge a juror either peremptorily or for cause, exists up to the time the jury is sworn; but both may be conclusively waived, by a failure to exercise the right at the proper time and in the proper manner.

Again, the constitution ordains that private property shall ever be inviolate, but subservient to the public welfare ; and when taken for the purpose of making or repairing roads which shall be open to the public without charge, a compensation shall be made to the o.wner in money, and that such compensation shall be assessed by a jury. Yet even this right, and the mode of determining it, may be .waived by the owner in a proceeding to take his property for such use, by failing to make application for damages at the time and in the manner required by a law regulating tbe proceedings to appropriate property in such cases. 22 Ohio St. 275.

Again, the defense of the statute of limitations may be waived.

But there are authorities more directly in point. Tbe right to hold personal property which the owner would otherwise be entitled to under the exemption laws, may be waived by mortgaging it to a creditor. 3 Ohio St. 270.

"Where the law required the debtor, in general terms, “ to select,” in order to entitle him to hold certain property exempt from execution, it was held that the “ selection should be made at the time of the levy, if the debtor be present; but if not present, then it should be made within a reasonable time thereafter, and before sale,” otherwise the right to select would be deemed waived. 3 Ohio St. 270.

These authorities show (1) that persons may expressly or impliedly waive either constitutional or statutory provisions intended for their benefit; (2) that where the statutory right to hold property exempt from execution depends upon selection or demand, the right may be impliedly waived by a failure to make the selection or demand at the proper time or in a reasonable manner, by the person entitled to exercise the right. Erom these it will follow, (3) that taking the well pleaded allegations of the answer to be true, the defendant had, in the light of the facts stated, at the time he attempted to make the selection, impliedly waived his right to select and hold exempt the particular chattel levied on by the constable.

The schedule annexed to the answer shows that he was the owner of considerably more thau $500 worth of chattels other than property absolutely exempt from execution; and consequently an appraisement of the property was indispensable to a determination of the debtor’s rights. The constable levied on one piece of property only. The debtor then demanded “ the exemptions allowed him by law,” but did not select or indicate to the constable his intention to select the article of property levied on. The constable and debtor then agreed upon a time and place, chosen by the debtor, when the constable should attend with qualified appraisers for the purpose of ascertaining the debtor’s exemptions by appraisement, at which time and place the debtor agreed to be present. The time and place^ agreed upon were apparently both convenient and proper. The constable with the appraisers attended at the time and place agreed upon, for the purpose of complying with the requirements of the law in such cases. The debtor purposely absented himself. What was the constable to do ? We do not think the law required Mm to depart, and return with the appraisers at some other time for the purpose of discharging Ms official duty in the case. He did what was proper. After waiting a reasonable time for the debtor to come and make his selections, he set off to him, out of his chattel property, designated articles, including eight horses, which were appraised at over $800, exclusive of the horse levied upon. If the debtor was unable to be personally present .at the time agreed upon, he could have authorized his wife, agent, or attorney to have made the selections he desired.

The substance of the benefit intended to be given by the exemption law to the debtor, is. the right to hold property of a certain value, exempt from the claims of creditors. As ' was shown above, this benefit may be waived either expressly or impliedly, by acts done by the party intended to be benefited. It is true tbe law provides that tbe debtor-may select the property to be exempted, at any time before-the sale; but this is a mere privilege to the debtor, the exercise or non-exercise of which would not necessarily affect tbe substantial benefit conferred, where he has actually obtained the full statutory exemption without selection. Like the right itself, this privilege of selection may be either expressly or impliedly waived. We think it was-impliedly waived, by the failure of the debtor to attend, as be should have done, at the time and place fixed by him and the constable for setting off and appraising his exemptions.

When once waived, it could not afterward, but before-the sale, be revived and asserted.

If there has been no waiver, the debtor’s right to demand and select his exemption would, of course, have continued up to the time of the sale.

We think there was error in sustaining the demurrer to-the answer.

Motion granted. Judgment of the superior court reversed, and cause remanded.

Judgment accordingly.