
    Levi Frost, Jr. v. Benjamin Shaw and Moses A. Birchard.
    The owner of the chattel property, which is exempted hy law from execution and sale for the payment of debts, is not divested of the right of disposing of it by pledge, in security for the payment of his debts; and in case of a pledge or chattel mortgage the owner clearly waives the benefit of exemption, so far as the incumbrance extends or is operative.
    Where, by the terms of a chattel mortgage, the mortgagee, at the maturity of his debt, has the right to the possession of the property, and he sees proper to reduce his debt to judgment, and then, through his agent, to turn out the mortgaged property, and have it sold under the authority of an execution for the payment of his debt, the debtor sustains no injury in the right of possession in the property, which would support an action of trespass, even although the chattels thus mortgaged and sold belonged to the enumerated articles exempted by law from execution.
    There are certain enumerated articles which are absolutely exempted from execution, and which the officer is bound at his peril to notice and not take on execution, unless turned out by the debtor, by a waiver of his right of exemption; but there are other articles, the exemption of which from execution depends on the selection to be made by the debtor.
    Where the exemption depends on the selection to be made by the debtor, the selection should be made at the time of the levy, if the debtor be present; but if not present, then it should be made, and notice given to the officer, within a reasonable time thereafter, and before sale. And without such selection, the right to the benefit of the exemption does not exist as to those articles which the statute authorizes the debtor to select.
    
      In an action of trespass against an officer, for a seizure and sale on execution of chattels which are exempted by law from execution and sale, on the selection of the debtor, it is indispensable, in order to sustain the action, that the plaintiff should establish his right to the exemption, by proof of his selection of the property for the purposes contemplated by the statute.
    Writ of error to the district court of Portage county.
    The original action was trespass instituted by the plaintiff in 271] error for the recovery of damages for the levy and sale *by execution of certain chattels, consisting of one yoke of work-cattle, one ox-yoke with the bows and irons, six sheep, and one cow, which he claimed exempted by law from seizure on execution for the payment of debts. It appears that the plaintiff in error, being indebted to persons of the names of Yangorder & Canfield in the sum of $68.83, did, on the 3d day of November, 1845, give to them. his promissory note for that amount; and, as security for the same, delivered to them a chattel mortgage of the property above mentioned (with the exception of the ox-yoke with the bows and irons), conditioned to be void on the payment of the note at maturity, providing in the mortgage that the- property was to remain in the plaintiff’s possession until the note should become due, and if not then paid that the property should be redelivered to said Yangorder & Canfield, which said chattel mortgage had been duly filed in the office of the clerk of the proper township. The note having become due and remaining unpaid, Yangorder & Canfield caused judgment to be taken on it against the plaintiff in error before a justice of the peace, on which execution was issued to defendant Shaw, acting aB constable, who, by virtue thereof, and by direction of the defendant Birchard, as agent of the plaintiffs in the execution, levied on and sold said chattels to satisfy said execution. Thereupon the plaintiff in error commenced suit against the defendants in error, claiming that the property so sold was exempted by law from execution. On the trial of the case in the court of common pleas, a verdict was rendered in favor of the defendants ;• the plaintiff moved for a new trial, but the motion being overruled and judgment rendered on the verdict, he excepted to the ruling of the court. The evidence offered on both sides on the trial is set out in the bill of exceptions; from which it appears that, at the time of the date of the chattel mortgage, and also at the time of the levy and sale on execution, the plaintiff was a man of family, engaged in the business of agriculture; and the oxen, levied on as aforesaid, was the only team he had, and the ox-yoke, with its appendages, -the *only and necessary gearing for the same; [272 and, also, that the cow so taken was his only cow.
    The case was taken to the late Supreme Court of Portage county by writ of error; where the judgment of the common pleas was affirmed. And this writ of error is prosecuted to reverse the judgment of affirmance of that court.
    It is assigned for error that the common pleas instructed the jury that the plaintiff in error had, by means of the chattel mortgage, waived his right to hold the property in question exempt from execution for the collection of the mortgage debt.
    
      Lucius V. Bierce, for plaintiff.
    
      Ranney, Tilden, and Matthew Birchard, for defendants.
   Bartley, J.

Although the humane provisions of the law exempting certain articles of necessity from execution for the payment of debts may be entitled to a liberal construction, the settled principles which govern the rights of private property are not to be overlooked. The owner of the chattels exempted from execution is not divested of the right of disposing of the property himself, either by sale or by pledge in security for the payment of his debts. And in case of a pledge or chattel mortgage, the owner clearly waives the benefit of the exemption, so far as the incumbrance extends or is operative. It appears in this case, that this debt remained unpaid, and that, by the express terms of the mortgage, not only the right of property, but also the right of possession in the property in controversy, except as to one article, passed to the mortgagees after the maturity of the note. The creditors had an undoubted right to take possession of the property under their mortgage and dispose of it for the payment of their debt, leaving the plaintiff divested of all rights, except that which would depend on the contingency of an overplus after the payment of the debt. But it appears that the creditors chose to reduce their debt to judgment, and then, through their agent, the defendant Birchard, to turn this property out to the ^constable on execu- [273 tion. This could not have furnished the plaintiff in error any substantial ground for very serious complaint. But if any legal objection did exist to the form adopted by the creditors for the disposition of the property for the satisfaction of their debt, it did not furnish ground for an action of trespass, which is founded on an injury to a person in his right of possession in his property. By virtue of the chattel mortgage, both the right of possession and the' right of property in ail the chattels, excepting one, had passed to the mortgagees; and if they deemed it proper, through their agent, to take possession of the property and have it sold under the authority of an execution, no wrong was done the plaintiff in his right of possession for which he could sustain an action of trespass.

But it is urged, with much force and ingenuity, by the counsel for the plaintiff, that the seizure and sale, on execution, of one of the chattels, consisting of an ox-yoke, with its appendages, which was not covered by the mortgage, sustained the action; and that the court of common pleas erred in the charge to the jury in reference to this article. The statute authorizes a person of a family, if he be engaged at the time in the business of agriculture, to select one work-horse, or mare, or one yoke of work-oxen, with the necessary gearing for the same,” which he may hold exempt from execution or sale for debt. Swan’s Rev. Stat. 710. We are saved the necessity of considering the. question whether the “ necessary gearing” could be held exempt from execution when the debtor had parted with the oxen, by the fact that it does not appear in this case that the plaintiff had laid any foundation, by proof, for his right to the benefit of the exemption, as to this article, which, by the terms of the law, depended on his selection of it, as necessary for carrying on his business of agriculture. There are certain enumerated articles which are absolutely exempted from execution, and which the officer is bound, at his peril, to notice, and not take on execution, unless turned out to him by the debtor waiving his 274] right to the exemption. But there are other ^articles, including that now in question, the exemption of which from execution,' by the terms of the law, depends on the selection to be made by the debtor at the time of the levy, if he be present; but if not present, he should make the selection, and notify the officer of the same, within a reasonable time thereafter, and before the sale. Without such selection, the right to the benefit of the exemption does not exist as to those articles which the statute authorizes the debtor to select, and when no such selection has been made, it is the duty of the officer to proceed to levy on and sell the property. The plaintiff, therefore, having failed to show that he had selected this article to be held as necessary to his business, failed to establish his right to the exemption, and, consequently, his right to maintain an action for the taking and sale of the article on execution.

The judgment of the court below is affirmed.  