GAMBLE vs. REYNOLDS

GAMBLE v. REYNOLDS. [ACTION AGAINST SHEEINN NOR SELLING EXEMPT PROPERTY.] 1. Property exempt — Where R., “head of a family,” owns two mules and no horse or pair of oxen, and fi. fas. from a justice’s court are levied upon one of them, “Kitand on the same day a fi. fa. from the circuit court against said R. is placed in the hands of the sheriff; and after the levy as aforesaid, R. agrees with a third party, that if said party will satisfy the justice’s ft. fas., he shall have the mule “Kitand the said party satisfies saidji. fas., and afterwards exchanges “Kit” for the other mule belonging to said R. ; and the mule “Kit” is afterwards taken and sold by the sheriff under the circuit court fi. fa., notwithstanding the saidR. made claim and affidavit that she was exempt under the statute, — held, that the mule “Kit, ” under the circumstance, is exempt from sale under the circuit court fi. fa., and that the sheriff is liable to this action. 2. Damages ; action for.' — Before “head of a family” can bring an action for damages against the sheriff, for selling iiroperty exempt by law, it must be shown that the affidavit pres9rfbed by the statute, had been duly made by him and exhibited to the officer. Appeal from the Circuit Court of Henry. Tried before the Hon. Henry D. Clayton. This was an action by Reynolds against Gamble, in the court below, to recover damages for the conversion of a mule by the said Gamble. The facts were as follows: Reynolds was head of a family, and owned two mules only and no horse or pair of oxen. There were sundry judgments in a justice’s court against him, upon which executions had been issued, and were levied on 20th August, 1866, on the mare mule “ Kit.” On the same day, 20th August, 1866, a certain execution against-said Reynolds, was issued upon a judgment in the circuit court of Henry county, and placed in the hands of the said Gamble, who was then sheriff of said county, and was levied on the same mule “ Kit,” on the 17th September, 1866. After the levy of the fi.fas. from the justice’s court, and before the levy of the fi. fa. from the circuit court, Gamble made an agreement with one Davis, by which Davis was to satisfy the fi. fas. levied on the mule “ Kit,” and in consideration thereof, to have the mule. These fi. fas. were satisfied by Davis, who then took possession of the mule “ Kit,” and afterwards exchanged her with Reynolds for his other mule, called in the record the “ young mule.” After this, the mule “ Kit” was levied upon and sold by Gamble, as sheriff, under the fi. fa. from the circuit court. Reynolds, before the sale, , made claim to “ Kit,” as being exempt by law, and made affidavit to the fact, as required by law. The other facts in the case and charges of the court will sufficiently appear from the opinion of the court. There was a verdict and judgment below in favor of Reynolds, for the value of the mule. W. 0. Oates, for appellant. [MAJORITY — JUDGE, J.] JUDGE, J. The appellee was entitled to have exempted from levy and sale under execution, “ one work horse or mule, or one pair of oxen.” It does not appear that he bad a horse, nor a pair of oxen, but be bad owned two mules, one of wbicb be disposed of before tbe levy, in payment of executions against him from a justice’s court; so that be owned, at tbe time, but tbe mule levied on. Tbe appellee, therefore, was not in a condition to elect which of the two mules be would retain as exempt from tbe levy, even tbougb tbe executions were bens upon both. Tbe adjudications of tbis court heretofore made, we think; show that tbe appellee bad tbe right to claim as exempt, tbe mule'levied on. — Calloway v. Carpenter et al., 10 Ala. Rep. 500 ; Ross v. Hannah, 18 Ala. 125. Tbe charge of tbe court that it was not necessary that tbe appellee should have interposed his claim to tbe mule, as exempt property, neither in writing nor orally — “ that it was not necessary that be should have interposed any claim at all, as tbe exemption was for tbe benefit of tbe family,” was erroneous. Section 2465 of tbe Code protects tbe officer, levying on property exempt from execution for tbe use of tbe family, from liability for any damages therefor, unless tbe affidavit prescribed by said section is made, and exhibited to tbe officer. It was' held in Simpson v. Simpson, 30 Ala. 225, that a verbal claim is sufficient to perfect tbe right of exemption, tbougb the statutory affidavit is necessary to give an action for damages against the officer ; and such is tbe present action. In Cook v. Baine, 37 Ala. 350, it was held that tbe statute applies only to cases where tbe suit is by tbe party in whose favor tbe exemption is claimed ; and that tbe affidavit is not necessary, in an action by the purchaser from tbe defendant in execution. But it clearly appears from tbe record of tbe present case, that tbe necessary affidavit was made in due time, and exhibited to tbe officer. As to tbis, there was no question or controversy in tbe court below. Tbe officer, who is tbe present appellant, admitted it in bis testimony. Tbe charge of tbe court, therefore, was clearly error without injury, wbicb- can not work a reversal of tbe, judgment. Judgment affirmed.