Farmers' Bank v. Morris

•JUDGE HINES

delivered tiie opinion of tiie court.

Appellant, having judgment and execution with return of “no property,” instituted this action in equity, obtained an ■attachment, and caused.it to be levied September 5th, 1876, ■upon a growing crop. From a judgment discharging the •attachment, this appeal is taken. The correctness of that ruling is the only question for our consideration.

Section 439 of the Civil Code, which authorizes a proceeding in equity on return of “no property,” was intended to enable the creditor to subject to the payment of his ■claim ‘ ‘ any money, chose in action,' equitable or legal interest, and all other property to which the debtor is entitled.” It affords a remedy that did riot exist at law, because of the inability of the law court to reach all the interests and property of the creditor by execution, which is the only means by which that court can enforce its judgments.

But it is insisted for appellee that the provision of the statute which forbids the levy and sale, under execution, of a growing crop until after the first day of October, applies to a proceeding like this, and practically operates to exempt to the debtor the growing crop up to the time at which an execution may be levied. This, we think, was not the intention of the law-makers. It was designed only to take away the remedy by execution, and not to exempt the property to the debtor, nor to deprive the creditor of any other means of enforcing his demand. If the intention had ■existed to exempt the property during a certain period, instead of taking away one of the remedies for the enforcement of the demand, the legislature would have expressly • declared the exemption or the suspension of all remedy during the period.

There are weighty reasons why the legislature might not be willing that a growing crop should be seized and sold under execution that would not apply to a proceeding in ■equity to subject the same property. In the latter case the chancellor has the power to so direct the enforcement of the ■demand as to protect the rights and interest of the debtor as well as of the creditor. But that consideration is immaterial, since no intention to take away the remedy in equity ■ appears in the statute. (Blincoe v. Lee, 12 Bush, 358.)

The court erred in discharging the attachment.

Wherefore, the judgment is reversed, and cause remanded with directions for further proceedings.'