Curtis v. O'Brien

Cole, J.

I. Execuero?exemption' This transcript presents hut a single question, and that is, whether a waiver of the exemption laws, contained in a note, will, when a judgment is obtained 7 7 o o uPon sac‘1 noteJ entli;le the plaintiff therein to-have his execution levied upon the property exempt from execution by the general laws of the State ?

*377 Our statute provides that certain “ property (naming it) of private individuals is exempt from execution.”. Rev., §3304. And if Ike debtor is the head of a family, there is a still further exemption provided for, including a homestead. § 3305. The justice, wisdom, propriety and sound policy of exemption laws are as well recognized, and these laws are as fully the settled policy of the State as the exemption from imprisonment for debt.

That the citizen or debtor may mortgage the identical property for the payment of the debt, does not at all conflict with the idea that he cannot waive the exemption of the statute, in his contract of indebtment; because the statute itself has provided for the execution of valid mortgages, without limit as to the property mortgaged. In the case of a judgment creditor applying to the court, or its officer, for an execution, the court, by its clerk, following the language of the law, says to him, “you may have the execution, but no exempt property shall be sold under it the creditor, however, says to the court, “ I will take your execution, but the debtor and myself have made a law for this case, which will control your writ and make it do what the law has declared it shall not do.” No court will permit parties thus to control its process so as to defeat the statute or render nugatory its most beneficent provisions. Without pursuing the discussion of the subject further in the opinion, we are agreed in the conclusion, that a person contracting a debt cannot, by a contemporaneous and simple waiver of the benefit of the exemption laws, entitle the creditor, in case of failure to pajr, to levy his execution against defendant’s objection uponexempt property. Such an agreement is contrary to public policy and will not be enforced.

This question has been decided differently in different States, and for a full discussion of it we refer to the following cases in Pennsylvania, holding that such waiver is *378 effectual, and will be enforced. 6 Watts, 34 ; 7 Id., 126 ; Case v. Denmore, 23 Penn. (11 Harris), 93; Louck's Appeal 24 Id. (12 Id.), 426; Johnston and Sutton's Appeal, 1 Casey, 116; Lines' Appeal, 2 Grant’s Cases, 196; Shelley's Appeal, 36 Penn., 373 ; Bowman v. Swiley, 31 Id., 225; Smith's Appeal, 23 Id., 310; see also State ex rel. v. Melonge et al., 9 Ind., 196 ; and as limiting this last case, see Eltzaoth v. Webster, 15 Id., 21. That such waiver is ineffectual, and will not be enforced, see Kneetle v. Newcomb et al., 22 N. Y., 249 ; Crawford v. Lockwood, 9 How. Pr. P., 547; Harper v. Seal, 10 Id., 282 ; Sevicks, Banet & Kuen v. Walker (Louisiana), 9 Am. Law Reg. (1860, 1861); see also Soenbeegn v. Watts, 1 (N. S.) Id., 1861, 1862, 553; Troutman v. Gowing, 16 Iowa, 415 ; Warnibold v. Schlicting, Id., 243; Maxwell v. Read, 7 Wis., 582 ; see also Woodward v. Murray, 18 Johns., 400 .

Affirmed.