Miles v. State

Fowler, J., delivered the opinion of the Court. This is an action on the bond of John H. Miles, sheriff of Somerset County, by Thomas Byrd, the equitable plaintiff, to recover the sum of one hundred dol ⁴⁰⁰ lars, as exempt from execution under section 10, Article 83 of the Code. The defendant, under an execution issued at the instance of Noah O. Sterling, who had recovered a judgment against the plaintiff, sold at public sale a small piece of land for one hundred and fifty dollars, that being the only property owned by the latter. The plaintiff appeared at the sale and claimed one hundred dollars in money, as his exemption under the law, and the defendant refused to recognize his claim.

There- is no question in regard to the narr. It is in the usual form, and the defendants pleaded thereto three pleas, all of which were demurred to. The Court below sustained this demurrer, and from this ruling 'the defendants have appealed. The first plea sets ’up an equitable defence as now allowed by section 83 of Article 75 of the Code, and is as follows: 1.

For defence, on equitable grounds, that at the time of the levy of the property set forth in the declaration, and afterwards, up to and at the moment when the sheriff, the said John H. Miles, offered the same at public auction, the equitable plaintiff affirmed and made known that the said property did not belong to him, but to his wife, that by reason of such representations no one would and did hid for the same, but the plaintiff in said execution, Noah C. Sterling, who became the purchaser thereof at and for the sum of $150; that after-wards Rowena Byrd, the wife of the equitable plaintiff, in a suit brought in this Court by the said Sterling, to which said suit the said plaintiff was a party, was adjudicated to be the owner of the said property in fee, by reason of which the said Sterling never in fact paid the said purchase money; wherefore these defendants'say, that the said land was not the property of the equitable plaintiff, and that he is not entitled to any exemption therefrom, as the plaintiff hath alleged, and this they are ready to verify. ⁴⁰¹ The facts set forth in the foregoing plea are, for the purposes of the demurrer, admitted to he true, and we think they constitute a full and sufficient answer to the plaintiff’s claim. It would be contrary to every principle of equity and fair dealing, to allow the plaintiff to disclaim all title to and interest in the land sold, and at the same time to claim the benefit of the provisions of the exemption law. Such a claim is also contrary to the spirit and letter of the law itself, which provides that “if any property of any defendant” cannot be divided, &c., then the whole