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Barton v. Brown

Supreme Court of California
Nov 19, 1885
68 Cal. 11 (Cal. 1885)

Opinion

         Department One

         Appeal from a judgment of the Superior Court of the county of Humboldt, and from an order refusing a new trial.

         COUNSEL:

         James Hanna, P. F. Hart, and E. W. Wilson, for Appellant, cited Hammersmith v. Avery, 18 Nev. 225.

          W. H. Brumfield, for Respondent.


         JUDGES: Ross, J. McKee, J., and McKinstry, J., concurred.

         OPINION

          ROSS, Judge

         The plaintiff sued for the conversion of certain personal property by the defendant, alleged to have been at the time, and since, the property of the plaintiff. Plaintiff claims to have purchased the property from James N. Barton, but the evidence shows that the pretended sale was not followed by an actual or continued change of possession. The court below, however, held, as matter of law, that the property in question was exempt from execution in the hands of the vendor, James N. Barton, and therefore, "the sale was valid between the parties and all creditors, whether followed by continued change of possession, or not." In this the court was in error. The right of exemption is a personal privilege, which, if not claimed, is waived by the debtor. Besides, a part of the property in question would not have been exempt under the statute in the hands of the debtor.

         Judgment and order reversed and cause remanded for a new trial.


Summaries of

Barton v. Brown

Supreme Court of California
Nov 19, 1885
68 Cal. 11 (Cal. 1885)
Case details for

Barton v. Brown

Case Details

Full title:JOHN BARTON, Respondent, v. T. M. BROWN, Appellant

Court:Supreme Court of California

Date published: Nov 19, 1885

Citations

68 Cal. 11 (Cal. 1885)
8 P. 517

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