Ackley v. Fish ( 1883 )

The opinion of the court was delivered by

Royce, Ch. J.

The defendant justified the taking of the hay replevied as deputy sheriff upon an execution in.favor of M. & O. H. Edson, and against the plaintiff L. W. Ackley alone, and for his sole debt. His right to levy upon the hay to satisfy said execution depends upon the construction to be given to s. 2324, R. L. The hay, being the product of the real estate of the wife, it was exempt from the levy unless the debt evidenced by the execution was for labor or materials so furnished as to render it subject to said levy.

The material which was the consideration for the debt was not used for the improvement of the real estate upon which the hay was produced. The statute, after exempting generally the products of the real estate of a married woman from attachment or levy of execution, provides that such products may be attached or levied upon for labor or materials furnished upon or for the cultivation or improvement of such real estate. It is claimed that, it appearing that the material furnished by the execution creditor was used for the improvement of real estate which the wife once owned and which was sold and the proceeds invested in the farm upon which the hay in question was produced, it comes within the above proviso. Whether it does or not depends upon the construction that should be given to the word such, as it is used in said proviso. Does it refer to any real estate that may have been owned by the wife ? or, is it limited to the real estate upon which the improvements have been made ?

Section 15 of chap. 1, R. L. in prescribing the construction to be given to statutes, provides that the words, said and such, when used by way of reference to a person or thing, shall apply to the same person or thing last mentioned. If the word said had been used instead of such, there could be no doubt but what it would refer to the estate upon which the improvements were made. One of the definitions given to the word such is “same” ; and .that is the definition that must be given to it as it is used in the proviso to the statute. The use of the words, “ the same,” as the equivalent of “ such,” limits the right to attach or levy upon the products of the real estate of the wife to products of such of her estate as has been improved by the expenditure of money or material furnished, and is decisive against the right of the defendant to. levy upon the hay replevied.

The judgment i,s affirmed.