Opinion
(June Term, 1864.)
1. If an article of property laid off to a housekeeper by freeholders be exchanged for another article, the article received in exchange is not exempt from execution.
2. It seems that the debtor might have procured the article received in exchange to be laid off to him by a second allotment, and then it would have been exempt.
ACTION of trover, tried before Heath, J., at Fall Term, 1863, of ORANGE.
The plaintiff proved that in 1859 he was the owner of a gray mare, which was laid off to him as a housekeeper, by freeholders acting (283) under the provisions of the Revised Code, ch. 45, secs. 8 and 9, and that a list of the property so laid off, including the mare, valued therein at $35.75, was made out and returned to the clerk of the county court, and that within a few weeks thereafter he exchanged the gray mare for a sorrel mare, being the one concerning which this suit was brought.
The defendant proved that he had purchased the mare at a sale made under a judgment and execution against the plaintiff.
The judge reserved the question of law as to the exemption of the mare from execution, and under his instructions the jury found a verdict for the plaintiff. The judge being of opinion with the plaintiff on the question of law reserved, gave judgment according to the verdict, and the defendant appealed.
Graham for plaintiff.
Phillips for defendant.
The plaintiff had a right to exchange the gray mare, and the effect of the exchange was to vest in him the title to the sorrel mare; so she was his property; but the question is, Was she protected from execution?
The plaintiff insists that as the gray mare was exempted, the privilege passed to the sorrel mare by the legal effect of the exchange; but the defendant insists that the privilege was personal to the gray, and did not attach to the sorrel.
The statute makes void any alienation of exempted property by the debtor, for the payment of his debts. He can sell or exchange it, but there is no provision that the article received in exchange shall be exempted from execution, and we see no ground upon which it is exempted by implication, as an effect of the exchange. On the contrary, we are of opinion that, by a proper construction of the statute, the sorrel mare was liable to execution as property acquired after the allotment. We are led to this conclusion, in opposition to the opinion of his (284) Honor, by two considerations:
If the effect of the exchange was to communicate to the newly acquired article the quality of being exempted from execution, it would be liable to abuse, and tend to defeat the policy of the statute in respect to the provision that the "other property" not enumerated shall not exceed in value the sum of $50 at each valuation; for example, if the debtor should exchange the property allotted for other property of the value of $100, by undertaking to pay the difference in cash or some other way, and the newly acquired property should be exempt from execution, the policy of the statute is defeated at once; but it would not stop there. If the property received on the first exchange acquired the quality of being exempt from execution, the same quality would be communicated to property received upon a second exchange, and thus the debtor would become an independent trader with privileged property ad infinitum. So, if a mare can be exchanged for a mare, she may be exchanged for a house, or for cattle, or a negro, or for land, and the same principle would apply. Thus any species of property acquired by exchange would be exempted from execution. In short, the courts can fix no limit to the number of exchanges or the kind of property. In this instance it was the first exchange — a mare for a mare — and we take it there was but little difference in value, and it may be, as suggested by Mr. Graham, that the motive was simply to exchange a young gray mare, which the man's children could not work, for a sorrel mare, which was steady and well broke; and if the Court had power to grant this indulgence to debtors, it would be disposed to do so in this case, but "hard cases are the quicksands of the law." The Court has no power to add to a statute; that is the province of the makers of the law; they can, if it be deemed expedient, allow this indulgence and fix a limit to it, so as to (285) guard against abuse.
There is another view of the subject. The statute requires a descriptive list of the several articles exempted to be made out and filed among the records of the office of the clerk of the county court. The object of this provision is to enable officers having executions in their hands to know with certainty what property was exempted. Dean v. King, 35 N.C. 20. This object would be entirely defeated if property received in exchange is also exempted. For it would put on an officer, who finds the debtor in possession of property not specified in the list, the responsibility of deciding whether it had been acquired by exchanges, which may have run through four or five stages. If he errs on one side, he is liable to the debtor; if on the other, he is liable to the creditor! It is not in the power of the Court to obviate this difficulty. The Legislature may do so, if it be deemed expedient to allow the debtor to exchange, by requiring the debtor to have the property, received in exchange, to be entered upon the list in place of the other, so as to give it the same "earmark" for the information of all concerned. And it was in the power of the debtor to accomplish the same end by having a second allotment, and a new list made out and filed, after the other property was acquired; and in that way both purposes of the statute would have been carried out. The value could not exceed $50, and the "ear-mark" would have been put on the property. It was the debtor's misfortune that he neglected to have a second allotment.
PER CURIAM. Error.
(286)