Against Property;-What may be Levied on or Sold;-Real Property. the land, and the trustee the mere naked and formal legal title. It does not apply to the interest of a purchaser in possession, who has Ct. of and the estate of the mortgagee has become Errors, 1819, Bogert v. Perry,* 17 Johns., 351; 150. Curtesy. The estate of a tenant by the curtesy initiate, sold by the sheriff,-Held, redeemable. Supreme Ct., 1824, Schermerhorn ↑. Miller, 2 Cow., 439. 151 Lessee for years. The interest of a lessee for years is liable to be sold under execution, as real estate; and, if it be sold, he has a year to redeem, and is entitled to the profits in the mean time. Supreme Ct., 1829, Evertsen v. Sawyer, 2 Wend., 507. 152. An estate from year to year may be sold on execution. Supreme Ct., 1853, Bigelow. Finch, 17 Barb., 394. 153. A rent reserved upon a lease in fee, with a right of re-entry and distress, is not an interest in land which is bound by a judgment, and it cannot be sold on an execution. [So held, on a review of many authorities, and overruling 7 Wend., 463.] Supreme Ct., 1847, Payne. Beal, 4 Den., 405. 154. Trust estate. Where A. buys land with the money of B., and takes a conveyance to himself, he becomes a trustee for B., whose interest as a cestui que trust may be taken, and sold, on an execution under a judgment against him. Supreme Ct., 1808, Foote v. Colvin, 8 Johns., 216. To similar effect, Jackson v. Sternbergh, 1 Johns. Cas., 153. Followed, Chancery, 1834 [citing, also, 1 Johns. Ch., 582], Kellogg . Wood, 4 Paige, 578. 155. The resulting trust, or residuary interest, remaining to the assignor, after the purposes of an assignment for the payment of debts are satisfied, cannot be sold on execution. [8 East, 467.] Supreme Ct., 1810, Wilkes c. Ferris, 5 Johns., 385. 156. The provision of the Statute of Uses, rendering land liable to execution against the cestui que use, or cestui que trust [27 Hen. 8, ch. 10; 1 Rev. Stat., 72, § 47], applies only to 8 fraudulent and covenous trusts, and other cases, in which the cestui que use, or cestui que trust, has the whole real, beneficial interest in 157. A purchaser in possession of land, under a contract entitling him to a conveyance on the payment of certain sums yet due, has such an interest in the land as may be levied on and sold on execution. Supreme Ct., 1820, Jackson v. Scott,† 18 Johns., 94. 158. If the whole beneficial interest is in the debtor, and he who holds the legal title is a mere naked trustee,-e. g., where a purchaser has fully performed his contract of purchase, and is entitled to a conveyance,—the judgment is a lien on the debtor's title. Supreme Ct., 1829, Jackson v. Bateman, 2 Wend., 570. 159. Where one holding a contract for the purchase of land, with possession under it, after judgment against her, performed the contract, and procured a conveyance to be made to her children;-Held, that the judgment was a lien upon her interest in the land, and that the deed raised a trust for her, so that a sale upon the execution, made prior to the deed, vested the title in the purchaser. [9 Cow., 85.] Supreme Ct., 1830, Jackson v. Walker, 4 Wend., 462. 160. A., having contracted to sell land to B., who had possession, conveyed the title to C., in trust for himself, and to receive the purchase-money from, and convey to B., upon the performance of the contract;-Held, that A.'s interest was a mere equity, and not a subject of sale. Supreme Ct., 1826, Jackson v. Chapin, 5 Cow., 485. 161. The interest of a cestui que trust is not liable to execution under 1 Rev. L. of 1813, 74, § 4, if others are jointly interested in the trust; but only where he has, at the time of execution issued, the entire interest in a mere formal trust. [1 Com., 226; 4 Bing., 335.] Ct. of Errors, 1837, Lynch v. Utica Ins. Co., 18 Wend., 236. 162. Where a trust results, under 1 Rev. * Followed, Chancery, 1882, Ontario Bank v. Root, Paige, 478; but see Kellogg v. Wood, 4 Id., 578. + See these cases reviewed, and the latter followed, in Jackson v. Parker, 9 Cow., 78. Consult, also, Forsyth v. Clark, 8 Wend., 687; Kellogg v. Wood, 4 Paige, 578; Ellsworth v. Cuyler, 9 Id., 418. Against Property;-What may be Levied on or Sold;-Partnership or Joint Property. Stat., 728, §§ 45-52, in favor of the creditors of a person paying the consideration and taking a grant in the name of another, such person does not take an interest which creditors who were such at the time may sell, under judgments for their debts. The trust results not to the debtor, but to the creditors, and they must resort to a court of equity. Ct. of Appeals, 1857, Garfield v. Hatmaker, 15 N. Y. (1 Smith), 475; overruling Wait . Day, 4 Den., 439; and approving Brewster v. Power, 10 Paige, 562; and see 2 Rev. Stat., 368, § 26. 163. A purchaser holding a contract for a conveyance, not having paid up the consideration, has no interest which can be sold on execution. [1 Rev. Stat., 736, §4; 1 Johns. Ch., 51; 17 Johns., 356; 3 Paige, 220; 9 Id., 422; 10 Id., 562; 2 Barb. Ch., 458; 6 Barb., 116; 9 Paige, 74; 4 Id., 578; 6 Hill, 525.] Hence his grantee in possession can have none. Ct. of Appeals, 1853, Sage v. Cartwright, 9 N. Y. (5 Seld.), 49. 164. An interest in a contract for the purchase of land cannot be reached by execution. [1 Rev. Stat., 744, §4.] Chancery, 1842, Ellsworth v. Cuyler, 9 Paige, 418. 165. The interest of one holding land, under a contract for its purchase, is not subject to the lien of a judgment, and cannot be sold under an execution. Supreme Ct., 1844, Griffin v. Spencer, 6 Hill, 525. Chancery, 1847, Boughton v. Bank of Orleans, 2 Barb. Ch., 458; and see Grosvenor v. Allen, Clarke, 275. 166. Though the purchaser has fully paid for the land, if he has not taken a deed, his equitable title is not subject to execution, nor is a judgment against him a lien on the land. Supreme Ct., 1849, Watson v. Le Row, 6 Barb., 481. 167. Beneficiaries under will. Where on a construction of a will the executors took, by implication, the legal estate during the lives of the testator's grandchildren,-Held, that such grandchildren had no present legal interest which could pass by a sale under judgment and execution against them. Ct. of Appeals, 1848, Brewster v. Striker, 2 N. Y. (2 Comst.), 19; affirming S. C., 1 E. D. Smith, 321. 168. Order of resort to several parcels. One having a judgment lien upon the land of his debtor, cannot enforce it against a part subsequently sold by the debtor, until he has exhausted the residue. Chancery, 1821, Clowes v. Dickenson,* 5 Johns. Ch., 235; 1828, James v. Hubbard, 1 Paige, 228. 169. Second sale. If land be sold on execution for not enough to satisfy it, and the defendant redeem it, the sale becomes null, and the land may be sold again upon the same execution and levy, to satisfy the balance of the judgment, though the return-day has passed. Supreme Ct., 1843, Wood ». Colvin, 5 Hill, 228. The same rule is to be applied where the defendant's grantee redeems. Supreme Ct., 1848, Titus v. Lewis, 3 Barb., 70. That land cannot be resold in the purchaser's hands. Hewson v. Deygert, 8 Johns., 333. C. Partnership or Joint Property. 170. The interest of one partner in the partnership property may be taken and sold under an execution at law, on a judgment against him for his separate debt. Chancery, 1817, Moody . Payne, 2 Johns. Ch., 548. 171. The rule of chancery, that partnership property taken in execution for the separate debt of one of the partners, cannot be held against joint-creditors; and that the share of such partner for his separate debt, is to be applied only after the partnership accounts have been taken and settled,-recognized and enforced at law in a case appealing Wilson v. Coto the discretion of the court. nine, 2 Johns., 280. 172. Levy. A sheriff having an execution against one partner, has a right to levy on the partnership property; and no action at law lies against the sheriff for taking possession of the partnership property, under such execuThe court from which the execution tion. issued, would stay proceedings upon it, to give time to have an account taken in equity; but, if no stay is obtained, he can sell the right of the partner who is the defendant in the execution. Supreme Ct., 1834, Scrugham v. Carter, 12 Wend., 131. Against Property;-What may be Levied on or Sold ;-Exemption;-General Principles. sheriff for delivering the property to the vendee. [So held, on a review of many authorities.] Supreme Ct., 1840, Phillips v. Cook, 24 Wend., 389; and see Walsh v. Adams, 3 Den., 125; Burrall o. Acker, 23 Wend., 606; affirming S. C., 21 Id., 605. 174. If the sheriff, on execution against one partner, sell the whole property, he is liable, in trover or trespass, to the injured party, for the value of his undivided share, irrespective of the solvency of the firm, and the state of the accounts. Supreme Ct., 1846, Walsh t. Adams, 3 Den., 125. 175. Though the officer may take exclusive possession of property of co-tenants, upon execution against one, if he sells the entire property, it is such an abuse of his legal anthority as renders him a trespasser ab initio. [15 Mass., 82.] Supreme Ct., 1841, Waddell v. Cook, 2 Hill, 47; S. P., Walsh v. Adams, 3 Den., 125; and see Hull v. Carnley, 11 N. Y. (1 Kern.), 501, 509. 176. A sale under an execution against one partner, not limited to his right and interest, but of the entire partnership property, is an abuse of the process, and renders all concerned in the sale-e. g., the party directing it, the officer, and the auctioneer-liable as trespassers. N. Y. Superior Ct., 1854, Bates v. James, 3 Duer, 45. Consult, also, ATTACH MEST. cannot be the subject of a waiver. 2. It is not an estoppel, for it related not to a matter of fact, but to a matter of contract. There was no fact involved of which plaintiff was ignorant; and he must be presumed to know the legal effect of his agreement. Supreme Ct., 1854, Crawford v. Lockwood, 9 How. Pr., 547; S. C., 12 N. Y. Leg. Obs., 105; and see Harper v. Leal, 10 How. Pr., 276.* 180. A clause in a note, providing that for the payment of the same the debtor agrees to waive all exemptions to property, cannot operate as an estoppel unless it is shown that the creditor acted on the faith of the clause; and it seems, that in any case it would be void as against the policy of the law. Delaware County Ct., 1854, Harper v. Leal, 10 How. Pr., 276. 181. Householder. The provision of chapter 227 of the act of 1815,-exempting from execution certain articles owned by any person "being a householder,"-is to be construed as extending to every family, so long as they remain together as such, and this although for the time being they are houseless. So held, where the father, or head of the family had left the State, leaving his wife and children living together, and they were in the act of removing their residence when the levy was made. Supreme Ct., 1820, Woodward v. Murray, 18 Johns., 400; S. P., declared by 2 Rev. Stat., 367, § 22. D. Exemption. a. General Principles. 182. The word "householder," in 2 Rev. 177. Exemption a personal privilege. Stat., 367, means the head, master, or person A naked bailee of goods, which are exempt who has the charge of and provides for a famfrom execution, cannot maintain an action for ily; and does not apply to the subordinate trespass in taking them on execution against members or inmates of the household. Suthe owner. Only the owner can object. Supreme Ct., 1838, Bowne v. Witt, 19 Wend., preme Ct., 1823, Mickles v. Tousley, 1 Cor., 475. 114. 178. The right of a defendant to the statutory exemption of his goods from execution, is strictly personal, and does not avail another. [1 Cow., 114.] Supreme Ct., 1837, Earl v. Camp, 16 Wend., 562; 1856, Smith v. Hill, 22 Barb., 656. 179. Waiver of execution. A clause inserted in a promissory note, in these words, "hereby waiving the benefit of all and every exemption of property from sale on execution under the laws of this State," is inoperative. 1. A waiver cannot operate upon that which has no present existence. A right not in being, and which depends upon a contingency, 183. One having and providing for a household is a householder, and he does not lose that character by ceasing housekeeping, and storing his property, with intent to resume housekeeping in a while. Supreme Ct., 1852, Griffin v. Sutherland, 14 Barb., 456. 184. The fact that a woman keeps a house of ill-fame, does not prevent her from being considered a householder within the meaning of the Exemption Law. N. Y. Com. Pl., 1850, Bowman v. Quackenboss, 3 Code R., 17. * These cases were approved and followed, Ct. of Appeals, 1860, Kneettle v. Newcomb, 22 N. Y. (8 Smith), 249; affirming S. C., 31 Barb., 169. 1 Against Property;-What may be Levied on or Sold;-Exemption;-What Property is Exempt. 185. Family. A man and his daughter who live together, the wife and mother being dead, and the daughter being dependent upon her father for support, are a family within the meaning of the exemption laws. Saratoga County Ct., 1857, Cox v. Stafford, 14 How. Pr., 519; and see infra, 207, 208. books; and family library not exceeding $50 in value. 2 Rev. Stat., 367, § 22, subd. 2. 195. The professional books necessary to a professional man who supports a family, for the practice of his profession, are, to a reasonable extent, exempt from execution as a part of his "family library." N. Y. Com. Pl., Sp. 186. Part-owner. Under a statute exempt- T., 1856, Robinson's Case, 3 Abbotts' Pr., ing certain property "owned" by a debtor, | 466. such property of which he is part-owner is exempt. Supreme Ct., 1857, Radcliff v. Wood, 25 Barb., 52. 187. Election. It seems, that where a debtor has property of a description capable of exemption, but to a larger amount than the limit of the law, he is entitled to an election as to which portion shall be exempted. Seaman v. Luce, 23 Barb., 240; Lockwood v. Younglove, 27 Id., 505. 196. Seat or pew in place of worship. 2 Rev. Stat., 367, § 22, subd. 3. 197. Stock and stores. Ten sheep, their fleeces, and wool and yarn therefrom; one cow, two swine, and their necessary food; all necessary pork, beef, fish, flour, and vegetables actually provided for family use; and necessary fuel for 60 days. 2 Rev. Stat., 367, § 22, subd. 4. 198. Under 2 Rev. Stat., 255, § 169, subd. 4,-exempting all sheep to the number of ten, with their fleeces and the yarn or cloth manu 188. Where the question as to what is ex-factured from it,-fleeces, &c., not exceeding empt arises between the debtor and a receiver, in a creditor's suit against him, it does not rest in the discretion of either exclusively. N. Y. Superior Ct., 1848, Dickerson v. Van Tine, 1 Sandf., 724. 189. The debtor, while he is not to be allowed to cover extravagant articles of luxury under the claim of exemption, is not to be deprived of such as he had in common use in his family and were reasonable, and to be put upon reserving inferior articles, such as he had not been accustomed to use. Ib. that quantity, are exempt from execution in the hands of a householder not owning any sheep. Supreme Ct., 1833, Hall v. Penney, 11 Wend., 44. Followed, 1839, Brackett v. Watkins, 21 Id., 68. 199. Necessary vegetables are exempt, not only when stored for family use, but as well in any stage of the process of obtaining them for that use, whether by planting or otherwise. Supreme Ct., 1841, Carpenter v. Herrington, 25 Wend., 370. 200. Under 2 Rev. Stat., 254, § 169; 367, 190. Burden of proof. One claiming an § 22, the restriction of sixty days' supply exemption must show the facts making it out. refers only to the fuel. Food for cattle is exSupreme Ct., 1852, Griffin v. Sutherland, 14 empted with reference to the season-e. g., in Barb., 456; 1852, Carnrick v. Myers, Id., 9. the fall, hay enough to last through the win191. Articles claimed to be exempt from ter. Supreme Ct., 1843, Farrell v. Higley, distress, under the act, as being necessary | Hill & D. Supp., 87. cooking utensils, must be affirmatively shown 201. Clothes, furniture, &c. All necessary to be necessary; that they were such as wearing apparel, beds, &c.; chairs, certain tablemight be useful, is not sufficient. Supreme ware, and fire-irons. 2 Rev. Stat., 367, § 22, Ct., 1817, Van Sickler v. Jacobs, 14 Johns., 434. 192. Fraud. If there be an appearance that the debtor reduced himself to exempt property with intent to defraud creditors, the jury may sustain the levy. Supreme Ct., 1839, Brackett v. Watkins, 21 Wend., 68. b. What Property is Exempt. 193. Spinning-wheels, looms, and stoves, and a sewing-machine-exempt. 2 Rev. Stat., 867, § 22, subd. 1, as amended, Laws of 1860, 245, ch. 152. subd. 5. 202. Necessary wearing apparel for the family is not exempted in all cases, but only when it is owned by the householder, or head of the family. [2 Rev. Stat., 254, § 169] Clothing of one living with the family, who provides it for himself, is not exempt. Supreme Ct., 1838, Bowne v. Witt, 19 Wend., 475. 203. Tools of a mechanic, necessary for his trade, not exceeding $25. 2 Rev. Stat., 367, § 22, snbd. 6. 204. In addition to the foregoing, necessary household furniture, and working tools, and team, 194. Books. Family Bible, pictures, school-owned by any person being a householder, or hav Against Property;-What may be Levied on or Sold;-Exemption;-What Property is Exempt. such exemption shall not extend to execution on ing a family for which he provides, not exceeding that evidence of a custom in the country for $250 in value, and 90 days' food for team; but the employer to move mechanics' tools, was a demand for the purchase-money of such furni- admissible. Supreme Ct., 1849, Whitmarsh v. ture, tools, or team, or articles before exempt. Angle, 3 Code R., 53; S. C., Am. Law R., N. Laws of 1859, 343, ch. 134; amending Laws of S., 595. 1842, 193, ch. 157. 205. Debt for domestic's service. This 213. Team. A single horse, used in prosecuting his business, by a householder, having a family for which he provides, is a team, within the statute. Supreme Ct., 1853, Hoyt . Van Alstyne, 15 Barb., 568. 214. A single horse is a team, within the statute, when kept and used as such, and where the debtor owns one horse, and uses provision does not apply to a judgment for a claim accruing for services performed in a family as a domestic. Laws of 1858, ch. 107, § 1. 206. Constitutionality of the act. The act of 1842 (Laws of 1842, ch. 157), creating additional exemptions of property from sale on execution, is constitutional, though in terms extending to debts contracted before its pas-him as such, with another which he does not sage. It affects the remedy, and not the debt. Ct. of Appeals, 1854, Morse v. Goold, 11 N. Y. (1 Kern.), 281; overruling Danks v. Quackenbush, 1 N. Y. (1 Comst.), 129. 207. Householder. One who lives in his hired house, and keeps boarders, and has servants, is a householder within the act of 1842; the word "householder," and the words "having a family for which he provides," as used in the statute, are not identical in meaning, but each are intended to designate persons that might not be within the other. Supreme Ct., 1853, Hutchinson v. Chamberlin, 11 N. Y. Leg. Obs., 248. 208. Family. One who has children whom he maintains is within the act of 1842, though they are temporarily absent to be educated. N.Y. Com. Pl., Sp. T., 1856, Robinson's Case, 3 Abbotts' Pr., 466. own, the former is exempt. Supreme Ct., 1858, Lockwood v. Younglove, 27 Barb., 505. 215. The exemption of a "necessary team" (Laws of 1842), is not limited to the team of teamsters or laborers. The only horse of a country physician, or any other professional man, which is necessary for the successful or convenient prosecution of his professional business, is exempt. Supreme Ct., 1850, Wheeler v. Cropsey, 5 How. Pr., 288. To the same effect, 1853, Eastman v. Caswell, 8 Id., 75. 216. A carman's horse, with his cart, and the harness, constitute his "team," within the exemption act of 1842. Supreme Ct., 1853, Hutchinson v. Chamberlin, 11 N. Y. Leg. Obs., 248. N. Y. Superior Ct., 1853, Harthouse . Rikers, 1 Duer, 606; S. C., 11 N. Y. Leg. Obs., 223. To similar effect, see Eastman v. Caswell, 8 How. Pr., 75. To the contrary, Supreme 209. The surgical instruments of a phy- Ct., 1851, Morse v. Keyes, 6 Id., 18. sician are exempt as his "tools." Ib. 217. Necessary food for a team exempt 210. A watch hung up for use, in a family from execution, is not also exempt. Supreme having no clock, and which is needed for Ct., 1847, Rue v. Alter, 5 Den., 119. their daily business, has been held to be ex- 218. Proviso. Under the act of 1842 (Laws empt from execution. And it seems, that of 1842, 193, ch. 157), exempting additional where a watch is actually necessary to the property to that before exempt, "provided discharge of the debtor's business, and not that such exemption shall not extend to any merely a convenience, it will be included un-execution issued on a demand for the purchaseder the term of "working tools." N. Y. Superior Ct., 1859, Bitting v. Vandenburgh, 17 How. Pr., 80. 211 Necessary. In determining whether a team is "necessary," it is immaterial whether the debtor has or has not other ample means to pay the debt. Supreme Ct., 1850, Wheeler . Cropsey, 5 How. Pr., 288. money of such furniture, or tools, or team, or articles now enumerated by law,"-it is only the exemption allowed by the section itself that is not available against an execution issued to collect the purchase-money of any exempt property whatever: but property exempt by pre-existing statutes cannot be levied upon for the purchase-money of other exempt 212. Where the debtor claimed that his horse property. Supreme Ct., 1851, Cole v. Stevens, and wagon were exempt from execution, by 9 Barb., 676; S. O., 6 How. Pr., 424; overreason of being necessary to enable him to re- ruling Mathewson v. Weller, 3 Den., 52. To move his tools from one job to another,-Held, same effect, 1850, Davis v. Peabody, 10 Barb., |