Opinion
No. 28509.
March 17, 1930.
1. EXEMPTION. Exemptionist, as citizen, householder, and head of family, could select truck worth less than $250 in lieu of property exempted by general provision ( Hemingway's Code 1927, sections 1891, 1902).
Where judgment debtor lived on farm, and had household furniture, plow tools, plow animals, cows, chickens, and the like, and, in addition to his farm work, he was using truck to supplement his income by hauling gravel, etc., judgment debtor under Hemingway's Code 1927, section 1902, could, as citizen, householder, and head of family, select truck worth less than $250 in lieu of property exempted by general provision, section 1891.
2. EXEMPTION. Exemptionist may select personal property of two hundred and fifty dollars in value out of any that he has, regardless of kind and character ( Hemingway's Code 1927, sections 1891, 1902).
Hemingway's Code 1927, sections 1891 and 1902, construed together, provide an alternate right to exemptionist to select personal property of two hundred and fifty dollars in value out of any that he has, regardless of kind and character thereof, and, so long as that value is not exceeded in aggregate, exemptionist may select some articles out of those specified in general statute, and, counting all personal property of every class selected, make up balance in aggregate value up to two hundred and fifty dollars out of any other personal property.
APPEAL from circuit court of Marion county. HON. J.Q. LANGSTON, Judge.
Sebe Dale, of Columbia, for appellant.
Section 1891, of Chapter 29, Code of 1927, on exempt property, fully sets out the personal property exempt to every citizen and householder. First and last the property set out therein is exempt. No other personal property in addition thereto is exempt.
Appellee complains that counsel for appellant cites no authorities to sustain his contention. There are no cases directly in point. Bank v. O'Neal, 86 Miss. 45, sustains the claim of exemptionist to two hundred fifty dollar personal property but it specifically sets out that it was all the personal property owned by exemptionist. Other cases might be cited but they show exemptionist had no other property or are silent as to other property. Not one can be found that holds that exemptionist can claim both.
Rawls Hathorn, of Columbia, for appellee.
It is appellee's contention that under exemption laws, a householder who is the head of a family can either claim as exempt any or all of the articles specified under subhead (Ninth), section 1891, or he can waive his right to claim his exemptions under subhead Nine of section 1891, and claim personal property of his choice and selection up to two hundred and fifty dollars in value, under section 1902, and this is true even though some of the personal property which he selects claimed as exempt under section 1902, might have been claimed as exempt under section 1891.
Bank v. O'Neal, 86 Miss. 53.
Exemption laws of the state to the head of a family, cannot be waived by an executory contract.
Teague v. Weeks, 89 Miss. 361, 42 So. 172; 18 Cyc 1450.
Appellant, having obtained a personal judgment against appellee in the justice court on a money demand, procured the issuance of an execution which was levied on a motortruck, belonging to the judgment debtor and valued at one hundred and twenty-five dollars. Appellee thereupon filed his affidavit claiming the said property as exempt to him as a citizen and householder and head of a family. Upon a trial of the claimant's issue, the justice court denied the claim of exemption, and the claimant appealed to the circuit court, which court entered judgment in favor of the exemption, and the judgment creditor appeals to this court.
On the trial it was shown that the exemptionist lives on a farm in the country, and has household furniture, plow tools, plow animals, cows, chickens, and the like, the value of which are not shown. The further proof was that in addition to his farm work, the exemptionist was using the said truck to supplement his income by hauling gravel, or anything else he could find to do along that line.
In the general section of the statutes dealing with exemptions to a head of a family (section 1891, Hem. 1927 Code), there are twenty specified articles of exempted personal property, being the kinds of property usually possessed and used in connection with farms and by farm householders. Among these items only two are limited in value, viz., one molasses mill and equipments, not exceeding one hundred and fifty dollars in value, and household and kitchen furniture not exceeding in value two hundred dollars. If an exemptionist owned and possessed these two items up to the allowable value, and also all the other eighteen, his total exemptions might amount to more than one thousand dollars, yet by the plain terms of the law, so long as he remained within the specified items, he could hold all of them. By another section of the statutes (section 1902, Hem. 1927 Code), "every citizen of this state male or female, being a householder and having a family, shall be entitled to hold exempt . . . personal property to be selected by him or her not to exceed in value two hundred and fifty dollars or the articles specified as exempt to the head of a family." It is under the first provision of the latter statute that, in this case, the exemptionist has claimed the said motortruck, being, as is admitted, of a value less than two hundred and fifty dollars.
It is the contention of appellant that the exemptionist cannot have both the two hundred and fifty dollars, and, in addition, the articles specified under the general statute as exempt to the head of a family. In this contention appellant is correct. Upon this basis, appellant next contends, proceeding to the further step necessary to maintain his case, that, if the exemptionist owns and possesses any of the articles exempted under the general statute, as, for instance, household and kitchen furniture, he cannot waive these and claim anything under the alternate two hundred and fifty dollar provision; and for this view appellant relies upon Teague v. Weeks, 89 Miss. 360, 42 So. 172. That case simply upholds the rule that the exemptionist cannot in advance by an executory contract waive his exemption rights — and this would apply as well to the two hundred and fifty dollar provision as to the general statute. Neither the case nor the rule extends to the right of selection when an attempt to take the property is made and the time for selection has actually arrived.
The second contention of appellant, to illustrate, would lead to this: A man engaged in earning a livelihood as a drayman using a motortruck of less than two hundred and fifty dollars in value, and who rents, for the occupancy of his family, a furnished apartment, thus owning no part of the furniture therein nor any other personal property, could claim the motortruck as exempt; but the moment he acquired ownership of a single piece of the furniture, or added thereto of his own, say a rocking chair worth five dollars, his right of exemption in the truck would be gone, so that he must then make a living with the rocking chair rather than with the truck. This, we must say, is not the law.
The statutes of the several states differ in details on this subject, to such an extent that little aid is derived from decision elsewhere. We believe the nearest in point with this case among our own decisions, is Bank v. O'Neal, 86 Miss. at page 55, 38 So. 630, 632, wherein it is said: "By the express terms of the law any species of personal property not exceeding in value two hundred and fifty dollars can be retained by certain exemptionists in lieu of the property exempted by the general provision to each head of a family." Applying this exact language to the case here: The exemptionist has selected for his retention a species of personal property of less than two hundred and fifty dollars in value in lieu of the property exempted by the general provision. This is sufficient to affirm the judgment; but we deem it our duty, within the record as presented, to add that in our opinion these statutes, construed together, intended to provide, and do provide, an alternate right to the exemptionist to select personal property of two hundred and fifty dollars in value out of any that he has, regardless of the kind and character thereof, and that therefore, so long as that value is not exceeded in the aggregate, the exemptionist may select some articles out of those specified in the general statute, and, counting all the personal property of every class selected make up the balance, in aggregate value up to two hundred and fifty dollars, out of any other personal property, as mentioned in the companion statute.
Affirmed.