Jordan v. Gower , 60 Tenn. 103 ( 1873 )

Nicholson, Chief

Justice, delivered the opinion of the Court.

O. C. Gower, being the head of a family in Davidson County, owned three horses, two of which were exempt from execution. Jordan had two executions against O. C. Gower, which he placed in the hands of W. J. Gower, as a constable. In the absence of O. C. Gower, Jordan and the constable went to his house, and Jordan directed the constable to levy on a bay filly, one of the three horses, and the most valuable. Before the day of sale O. C. Gower claimed the filly as exempt property, and tendered to the constable one of the other horses to be levied on and sold. The constable, being advised that O. C. Gower had the right to select two of the horses as exempt from execution, gave up the filly and took and sold the horse tendered by O. C. Gower. This horse failed to satisfy Jordan’s execution, and he sues the constable for giving up the filly.

The foregoing facts were agreed on by the parties and submitted to the Circuit Judge, a jury being waived. Judge Baxter was of opinion that the creditor, Jordan, had the right to direct the constable upon which of the three horses he should levy, and that O. C. Gower, the owner, had no right to select the two horses to be exempt from execution. Judgment was accordingly given for Jordan, and Gower, the constable, appealed.

We have been furnished with Judge Baxter’s opinion delivered in the case, from which we see that he concedes that from the passage of the first exemption Act, in 1820, down to the enactment of the Code, in 1858, the uniform coñstruction, legislative and judicial, of the exemption laws was, that the debtor had the right to select the property which he elected to hold free from execution; but he holds that the Code operated as a repeal of all prior exemption laws, and that because the sections of the Code substituted for the former laws contain no language indicating the right to make the selection, as was contained in the Acts of 1820 and 1827, therefore the right of the officer to levy on any of the property was restored just as it existed before the exemption Act of 1820 was passed. Whether this reasoning, and the conclusion deduced from it, are correct or not, depends upon the intention of the Legislature in enacting the' sections in the Code on the subject of exempted property. The first exemption Act, passed in 1820, expressly authorized the debtor to select and set apart the exempted articles. The next Act, passed in 1827, contained a similar authority, but none of the subsequent Acts, adding to the list of exempted articles, contained the express authority of the debtor to select and set apart; but all the Acts on this subject were considered and construed as constituting one system of laws, to be interpreted together, and hence that the right of selection attached whenever additional articles were added to the list. It was so held in the case of Still v. Haggard, 1 Hum., 392, and that construction has been uniformly followed to the present time. The last case reported is that bf Webb v. Brandon, 4 Heisk., 285, in which it was assumed that the right of selection existed by a widow.

It is manifest that when the Act of January 31, 1871, was passed, the settled understanding of the Court and of the profession was, that the right of selection attached to exempted property. Without any abuse of language,. it may be said that this construction had prevailed so long that the right of selection may be regarded as constituting part of the definition of exemption from execution; — the exemption was for the benefit of the debtor, and the enjoyment pre-supposed his right of selecting the articles which he deemed most beneficial.

The question is, did the Legislature,' by the Act of January 31, 1871, intend to take from the debtor the right of selection? There is nothing indicating this intention on the face of the Act, unless it can be implied from the omission of the language used in the Acts of 1820 and 1827, by which the right of selection was expressly conferred. But we have seen that this language was omitted in all the subsequent Acts, and yet that without this language the right of selection was uniformly held to exist. The Act of 1871 was passed for the express purpose of adding to the list of exempted property, and also to do more than “ amend the exemption laws, and to comprise them all in one act,” as indicated in the caption of the law. The purpose was to add to the law by way of amendment, and to bring all the exempted property into one view, to avoid the annoyance and trouble of looking through various Acts to ascertain what was and what was not exempted. It was not a repeal of former laws, and no such intention appears in the statute. The language giving the right of selection, used in the Acts of 1820 and 1827, was omitted, for the reason that upon the settled construction oí the exemption laws this language was necessary. To hold differently would be to assume that the Legislature intended to take from the debtor a material benefit, when there is ample evidence in the Act itself that it was passed in furtherance of the liberal spirit which has actuated the Legislature on the subject for more than half a century.

We are therefore of opinion that the Circuit Judge erred in his judgment, and the same is reversed and judgment given for defendant below.