Schouton v. Kilmer

8 How. Pr. 527

• Court: New York Supreme Court
• Decided: November 15, 1853
• Status: Published

Opinion

Willard, Justice.

The act of 1850, (L. 1850, p. 499,) does not exempt the homestead of a householder from sale on execution, except for debts contracted after the passage of that law. If the execution be issued upon a judgment in tort, the homestead is not exempt. A judgment for costs, in an action of tort falls within the same rule. It is not a judgment for a debt contracted, &c.

There is a material difference between the language of the former exemption acts and that of 1850. The act of 1830, (2 R. S. 367,) exempts certain articles of personal property therein mentioned, from levy and sale under any execution, &c. And the act of 1842, (p. 193,) is also equally general. It was not the policy of the former acts to exempt any thing but a few necessary articles of personal property, small in relative amount, compared with what is reserved by the homestead exemption act. The difference between the two species of exemption is, that in the former case the property is placed beyond the reach of execution upon any judgment, and in the latter, only when the judgment is for debts contracted after the passing of the law.

Without considering other points the injunction can not be allowed.

Motion denied.