King v. Warren

42 Misc. 317, 86 N.Y.S. 609

• Court: New York Supreme Court
• Decided: December 15, 1903
• Status: Published

Opinion

Weight, J.

The plaintiff, with three others as sureties, executed with one William. T. Mullen as principal, an undertaking of bail in a criminal action to secure the release of said Mullen from prison, pending an appeal from a judgment of conviction for a felony, rendered in the Oswego County Court. The judgment was affirmed and the criminal absconded. An action on the undertaking was brought' in the County Court against the sureties but not against the principal.

The judgment in question for $1,528.04 was obtained against the sureties, and the sheriff levied upon the plaintiff’s farm, which was purchased with pension money.

The defendant sheriff urges that the plaintiff is estopped from setting up the privilege for the reason that in his justification clause in the undertaking of bail, he stated in substance that the said farm was not exempt.

The representation complained of does not in law constitute an estoppel depriving the plaintiff from claiming the benefit of the right of exemption conferred upon veterans of the wars of our country. Robinson v. Wiley, 15 N. Y. 489, opinion by Johnson, J.; Countryman v. Countryman, 28 N. Y. Supp. 258.

In Texas, in the absence of a contrary statutory provision as exists in this State, it has been held that a statement and misrepresentation in a deed of trust or in a mortgage, that, the land covered by it was not a homestead, would not estop the grantors from afterward asserting it to be such. Crebbin v. Moseley, 74 S. W. 815; Sheckles v. Lewis, 75 id. 836.

As remarked by Judge Williams in his opinion in the case ■of Countryman v. Countryman, supra, “ The rule is that exemption statutes should be liberally construed in the favor of the party claiming the exemption. They rest upon public policy looking to the protection of the soldier and his family against improvidence and misfortune.” Ulnder this rule, the misrepresentation complained of in this case should in equity have no greater force than would be given to an express waiver in the justification clause of the plaintiff’s right of exemption; but a waiver in that form would be void as not conforming to the statutory requirements. Code. Civ. Pro., § 1404; Rutt v. Howell, 50 Iowa, 535; Terrell v. Hurst, 76 Ala. 588; Sharp v. Am. Freehold Land Mtge. Co., 95 Ga. 415; 22 S. E. 633.

It follows that the plaintiff is entitled to judgment.

Judgment for plaintiff.