Slaughter v. Detiney

10 Ind. 103

• Court: Indiana Supreme Court
• Decided: May 24, 1858
• Status: Published

Opinion

Perkins, J.

Suit for the recovery of sixty acres of land alleged to be in the possession of the defendant, Detiney.

Answer, 1. Denying generally the complaint; and, 2. Alleging that on, &c., the defendant, Detiney, and one Lawrence, were the joint and equal owners of said sixty acres; that, being so, they mortgaged them to Terry Co., to secure a debt contracted after the 4th ofL July, 1852; that the wife of Lawrence joined in the mortgage, while the wife of Detiney did not; that subsequently, Terry Sf Co. foreclosed the mortgage, obtained a decree for the sale of the mortgaged premises, the wife of Detiney not being a party thereto, and that the lands were sold under the decree, the plaintiffs in this suit becoming the purchasers; that before the sale, defendant, Detiney, claimed the land as exempt from execution, demanded its appraisement, and selected a freeholder on his part to aid in making it, &c. The defendant alleges that the plaintiffs purchased with notice, that his wife is still living, and that he was and is a resident householder, &c.

A demurrer was overruled to this paragraph of the answer, and final judgment was rendered for the defendant.

It is provided in 2 R. S. p. 337, that any resident householder may select from his real and personal property 300 dolTars’ worth which shall be exempt from execution.

The third section of the act is as follows:

“No mortgage or sale of any real estate, exempted under the provisions of this act, shall be valid if executed by a married man, unless the deed be acknowledged by the wife in due form of law.”

The second paragraph of the answer above set out, was drawn with reference to this section; but the appellant contends that the section does not apply to the case. He insists that it relates only to property that has been claimed and allowed as exempt from execution before it is mortgaged; that the mortgage, to be rendered void, must be executed upon property then actually exempt. There is certainly much strength in the position taken. By the statute, a debtor has a right to select, out of all his property, particular pieces to the value of 300 dollars, leaving the balance to be sold to pay debts. Austin v. Swank, 9 Ind. R. 109. And it is easy to see, that if a man, his wife not joining, may mortgage to one creditor, who may be willing to give him time, a piece of land, and let his other creditors sell his remaining property to pay their claims, he selecting the mortgaged property as exempt from sale on execution, both against his other creditors, and also against the mortgagee when he shall seek to foreclose, great injustice and hardship may be occasioned. It would seem to be invalidating by a subsequent act, what was before valid. Nor, it would seem, can the mere right to select a portion, out of many articles of property, as exempt, render any article actually exempt till the selection has been made. But we regard this point as of too much importance to be settled till after it has been fully discussed; and we have seen no brief upon it from the appellee. We shall therefore leave it wholly undetermined, as the case must go back upon another point

(1).

W. T. Otto and W. Q. Gresham, for the appellants. R. Crawford, for the appellee.

It is further objected that the paragraph is bad because it alleges the selection of a freeholder as an appraiser, when the statute requires a householder. It is true that a freeholder may not be a householder, and hence, not a legal appraiser; but the statute further provides that if the execution-defendant fails to select an appraiser, as provided by statute, the sheriff shall select for him. This he should have done. It is also insisted that the paragraph is bad because it does not negative that the mortgage was given to secure purchase-money of the mortgaged lands, &c.

But as this exception, if it be such, in the statute, is contained in a subsequent, independent section, to that relied on in the answer, we think it need not be negatived therein, but should be set up by way of reply. See Sorden v. Gatewood, 1 Ind. R. 107.

Another objection to the paragraph of the answer under consideration is, that it purports to answer the whole, and actually answers but a part, of the' complaint. This is a valid objection. The suit is against the defendant to recover the entire sixty acres of which he is in possession. The paragraph is pleaded as an answer to the whole cause of action. It sets up, in fact, no bar to one half of that cause, even if valid (which we do not decide) qs to that. The defendant alleges a title to but an undivided half of the land. Beagles v. Sefton, 7 Ind. R. 496.—2 R. S. p. 167, § 600.

Per Curiam. — The judgment is reversed with costs. Cause remanded for further proceedings, with leave to amend.

See Vandibur v. Love, ante, 54.