State v. Boulden

Milijíb, J. delivered the opinion of the Court. This is a suit upon a sheriff’s bond for an alleged failure of that officer, in the levy of an execution and sale of property thereunder, to allow the defendant in the execution the benefit of the exemption law of 1861, ch. 7. The questions, which are presented solely by the pleadings, involve the construction and effect of the first and second sections of that Act. The first section declares, “that one hundred dollars worth of property of each defendant therein, shall he exempt from execution issued on any judgment in any ³¹⁸ civil proceeding whatever, except on judgments for breach of promise to marry, or for seductionand the second provides, “that each defendant in any such execution may select property, real or personal, to the value of one húndred dollars to he ascertained by three disinterested appraisers to he summoned and sworn by the officer at the time of levying the execution, and the appraisement signed by the appraisers shall he returned with the writ.” This law, passed in obedience to a constitutional requirement, was intended for the benefit of unfortunate debtors and their families, and as such is entitled to a liberal construction.

But while'this is so, the Courts in construing and executing it, cannot disregard the rights of creditors nor overlook what is required to be done by the debtor himself in order to secure the privilege thus conferred. As this is the first case in which these provisions of the statute have come before the Appellate Court for construction we have given them a careful consideration, and in our opinion they provide : 1st. That property only shall - be exempted, and the debtor has no right to demand an equivalent in money therefore. This is manifest from the language used.

The exemption is of property, and the right to select the property to he exempted is given to each defendant in the execution. Money arising from the sale can he given to him only under the. special provisions of the third section by which it is provided, “that if any property of any defendant, whether real or personal cannot he divided, so as to set apart a portion of it of the value of one hundred dollars, without loss and injury to all parties concerned, then the whole shall he sold, and the defendant whose property is sold shall have one hundred dollars of the proceeds in money, and whether the property can he divided without loss shall he determined by the appraisers ; ■this section only to apply to cases where a single parcel of land, or single article of personal property is levied on, ³¹⁹ and in all such cases the officer shall not sell unless the property offered, shall bring more than one hundred dollars.” This is the only case in which the debtor is entitled to receive money, and it was under this section that the case of Bramble vs. State, use of Twilley, 41 Md., 435 , arose. That case has no application to the questions now to be decided. 2nd. The exemption with the right to select the property to be exempted, is a privilege that may be waived by the party for whose benefit it was intended, and it seems to