Opinion
No. 33678.
April 24, 1939.
1. EXEMPTIONS.
An exemption is a personal privilege and as a general rule cannot be taken advantage of except by execution or attachment debtor, but an exception exists in favor of the debtor's wife who can make the claim for him (Code 1930, sections 1755, 1766).
2. ATTACHMENT. Execution.
The burden of proof on the trial of the right to property taken under execution or attachment is on the plaintiff in execution or attachment and not on the claimant (Code 1930, sections 1755, 1766).
3. APPEAL AND ERROR. Exemptions.
Where judgment debtor's wife claimed that automobile which debtor had transferred to her was exempt from execution and plaintiffs in execution failed to meet burden of overcoming wife's claim, entry of judgment against claimant was error, but where record indicated that on another trial plaintiffs in execution might be able to meet the burden, judgment was reversed and cause remanded (Code 1930, sections 1755, 1766).
4. EXECUTION.
Where judgment debtor's wife claimed automobile levied on by judgment creditor, if judgment creditor should recover judgment against wife the measure of liability of wife on her claimant's bond would be value of automobile at time judgment became lien thereon less amount of unpaid purchase price due and to become due (Code 1930, sections 1755, 1766).
APPEAL from the circuit court of Warren county; HON. R.B. ANDERSON, Judge.
Dabney Dabney, of Vicksburg, for appellant.
The purchaser of an automobile under conditional sale contract does not receive a legal title thereto until full purchase price is paid, but that his is an equitable interest.
Bankston v. Hill, 134 Miss. 288, 98 So. 689, 37 A.L.R. 88.
A duly enrolled judgment becomes a lien on all of the property of the judgment debtor, real and personal, whether the title to same is a legal title or an equitable title, provided such property is subject to execution.
Planters' Bank v. Walker, 11 Miss. 409.
An equitable interest in property may be sold.
Dame v. Hanson, 98 N.E. 589, 40 L.R.A. (N.S.) 873.
A judgment debtor can legally dispose of his property or equity in property, subject to the lien of an enrolled judgment; and a judgment debtor can legally dispose of his exempt property clear and free of all judgment liens, as exempt property is not subject to the lien of an enrolled judgment.
Sec. 1766, Code of 1930; Orgill Bros. v. Gee, 152 Miss. 590, 120 So. 737.
We concede that the judgment does follow the non-exempt equitable interest that the judgment debtor had in the property at the time of and prior to the bill of sale. But this equitable interest was any value in excess of the amount then due G.M.A.C., which said last named amount the claimant assumed to and did pay and for which she is entitled to protection because it did not invade the interest of the judgment creditor in any respect whatsoever.
We concede that the judgment is a superior lien to all conveyances of and liens on the property, which conveyances are made or accrue after the judgment has attached, provided the property is not exempt property. The lien extended, however, only to the non-exempt equity that the judgment debtor then had in the automobile, but this equity was the value only over and above judgment debtor's exempt interest and the amount then due the finance company.
The substance of the court's holding was that the automobile was subject to the lien of the enrolled judgment notwithstanding the bill of sale. The court did not hold that the bill of sale was void, or that there was not a valid consideration for it. To do so would hold contrary to all of the evidence, and the holding would have no evidence whatsoever to support it. And so with the judgment of the court in holding that the automobile is subject to the lien of the enrolled judgment notwithstanding the bill of sale. This is contrary to the law; and to so hold for any other reason would be contrary to the facts.
We submit that the judgment of the court was contrary to the evidence and contrary to the law, and that this judgment should be reversed and a judgment rendered here holding the lien of the judgment and execution subject to the rights of the sub-vendee or claimant, this appellant, to the extent of the exempt interest of the judgment debtor and of the sum paid by her on the automobile after the execution of the bill of sale.
Vollor Teller, of Vicksburg, for appellees.
The judgment is a lien on the car.
Cahn v. Person, 56 Miss. 360; Sec. 611, Code of 1930, formerly sec. 607, Hemingway's Code, sec. 819, Code of 1906; Gerlach-Barlow v. Ellett, 145 Miss. 60, 111 So. 92.
The judgment debtor here is entitled to no exemption.
Appellant's claim was for fraudulent purposes or delay. When under sections 3428 and 3429, Mississippi Code of 1930, it appears that the claim interposed was made "for fraudulent purposes, or for delay," then the jury is justified in assessing ten per centum damages on the value of the property — a personal judgment against the claimant and her sureties specified by the Legislature in an effort no doubt to compensate in a small measure judgment creditors who have wrongfully been subjected to the expense and vexation of unnecessary litigation.
The judgment of this court should be solely for a sum in money.
We urge that it is a sensible, elementary proposition and consequently good law to hold that when under a judgment such as the one at bar specific personal property is not restored, but, to the contrary, an appeal prosecuted, with the bond being based on the value of the article as fixed and determined, that the judgment of this court on appeal on the supersedeas bond of the appellant should be simply for a sum in money equal to the value fixed by the court, together with interest thereon and such damages as are assessed by statute by this Honorable Court.
We respectfully submit that this Honorable Court should, on direct appeal, affirm the judgment of the court below and, on cross-appeal, should award to the appellees ten per centum damages on the value of the vehicle executed upon, and that judgment be here entered awarding to the plaintiffs the sum of five hundred and fifty dollars ($550), the value of said car as fixed by the court below, together with interest thereon from date of said judgment, ten per centum damages as provides for by section 3429 and the damages allowed in this court.
Argued orally by F.Y. Dabney, for appellant, and by Landman Teller, for appellees.
Appellees, the Halpins, recovered a judgment in the circuit court of Warren County against James R. Reid in the sum of $20,000. Execution was issued on the judgment and levied on a Buick automobile, as the property of the judgment debtor. His wife, the appellant, claimed that the automobile belonged to her and was not subject to the judgment. That was the question in the case — the other questions grew out of that. The trial was by consent before the circuit judge, acting as judge and jury. The judgment was in favor of the judgment creditors. From that judgment, the claimant, Mrs. Reid, appeals.
The trial was had on appropriate pleadings and agreed facts and additional testimony of witnesses. The judgment became final in January, 1938. In February of that year the judgment debtor transferred in writing to his wife his Buick automobile upon which the execution soon thereafter was levied. The General Motors' Acceptance Corporation held against the automobile a conditional sales contract to secure the purchase money, which provided among other things that the title should remain in the General Motors Company until the purchase money was paid. The transfer by the judgment debtor to his wife recited as consideration therefor the sum of $152.58 theretofore paid by her for him on the purchase price of the car, and her assuming the remaining purchase money instalments in arrears and those to mature in the sum of $305.16. The evidence tended to show that the value of the car above the purchase money due thereon was not more than $250. The wife claimed that the car was exempt to the judgment debtor from execution under section 1766 of the Code of 1930, which provides among other things that every citizen householder having a family shall be entitled to hold exempt from seizure or sale under execution or attachment personal property to be selected by him or her not to exceed in value $250, or the articles specified as exempt to the head of a family by section 1755 of the Code. The right of the wife to make the claim is questioned, the contention being that the judgment debtor alone could make it.
Although an exemption is a personal privilege and as a general rule cannot be taken advantage of, except by the execution or attachment debtor, an exception is that his wife can make the claim for him. 25 C.J., sec. 232, p. 131.
The case comes down to this: If the automobile was exempt to the judgment debtor, his wife got it freed from the judgment. If the judgment debtor claimed the exemption given by section 1755 of the Code, he was not entitled to the $250 exemption provided by section 1766, and the converse is true. The evidence fell short of solving that question. The trial court proceeded on the idea that the burden to do so was on the claimant. This was error. The burden of proof on the trial of the right to property taken under execution or attachment is on the plaintiff in the execution or attachment, and not on the claimant. Ross v. Garey, 7 How. 47, 8 Miss. 47; Thornhill v. Gilmer, 4 Smedes M. 153, 12 Miss. 153; Atwood v. Meredith, 37 Miss. 635; Butler v. Lee, 54 Miss. 476.
The plaintiffs in execution having failed to meet that burden, the court erred in rendering the judgment. However, there are indications in the record that on another trial the plaintiffs in execution will be able to meet that requirement. For that reason we reverse the judgment and remand the cause.
If the judgment creditors should recover a judgment on another trial the measure of the liability of the wife on her claimant's bond will be the value of the automobile at the time the judgment became a lien thereon, less the amount of the unpaid purchase money due and to become due.
Reversed and remanded.