Opinion
November, 1895.
George C. Carter, for plaintiffs.
George C. Morehouse, for defendant.
Both the national and state legislatures have been careful to protect soldiers in the enjoyment, not only of their pension money, but also of such property, bought with pension money, as can be clearly and definitely traced to that source. The federal statute upon the subject is as follows:
"No sum of money due or to become due to any pensioner shall be liable to attachment, levy or seizure by or under any legal or equitable process whatever, whether the same remains with the pension office or any officer or agent thereof, or is in course of transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of such pensioner." R.S.U.S., § 4747.
The statute of this state applicable to the subject is part of the Code of Civil Procedure, occurring under the title of "Property Exempt from Levy and Sale," and is as follows:
"The pay and bounty of a noncommissioned officer, musician, or private, in the military or naval service of the United States or the State of New York; a land warrant, pension, or other reward, heretofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem or device of any kind, presented as a testimonial for services rendered in the military or naval service of the United States or a state; and the uniform, arms and equipments which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for nonpayment of taxes, or in any other legal proceeding." Code Civ. Proc., § 1393.
This section received careful consideration in Yates Co. Nat. Bank v. Carpenter, 119 N.Y. 550, where it was held by the Court of Appeals, all the judges concurring, that when the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and maintenance of the pensioner and his family, such property is exempt from levy and sale on execution. In discussing the case, Chief Judge Ruger used the following language:
"The plain purpose of the act was to promote the comfort of the soldier, to secure to him the bounty of the government, free from the claims of creditors, and to insure him and his family a safe, although a modest, maintenance, so long as their needs required it. * * * We entertain no doubt that, where the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and maintenance of the pensioner and his family, such property is exempt, under the provisions of this statute. Where such moneys can be clearly identified, and are used in the purchase of necessary articles, or are loaned or invested for purposes of increase or safety, in such form as to secure their available use for the benefit of the pensioner in time of need, we do not doubt but that they come within the meaning of the statute; but where they have been embarked in trade, commerce or speculation, and become mingled with other funds, so as to be incapable of identification or separation, we do not doubt but that the pensioner loses the benefit of the statutory exemption."
As it appears that the pensioner in question has no property aside from his interest in this real estate and the monthly pension allowed him by the government, this case and the language used in deciding it seem applicable to the case in hand. The Statute of Exemption makes no distinction between a levy and sale by virtue of an execution, which was that case, and the nonpayment of taxes, which is this case. Considering the object of the statute, no reason is apparent for distinction, as the soldier might lose his home, which it was the object of the statute to secure to him, by a sale for the nonpayment of taxes the same as by a sale for the nonpayment of debts. The legislature, grateful to the soldiers who so faithfully served the country in its time of need, clearly intended to provide a comfortable support to such as had been wounded or had become disabled by disease in the discharge of their duties, by allowing them the use of all pension moneys, free from any claim for debt or taxes. A statute with such an object should be so construed as to carry that object into effect; and, without further discussion, it is, therefore, held that the section under consideration, as construed by the Court of Appeals with reference to exemption from sale under execution, applies with equal force to exemption for nonpayment of taxes.
The defendant, however, claims that the wife has an interest in the property in question as tenant by the entirety, by virtue of the deed running to the plaintiffs jointly, and the authorities sustain this position. Bertles v. Nunan, 92 N.Y. 152; Zorntlein v. Bram, 100 id. 12; Hiles v. Fisher, 144 id. 306. From this fact it is argued that the wife had an assessable interest in said land, which is probably correct. It is further argued that, as real property may be assessed either to the owner or occupant, this property was properly assessed in the name of the husband, and that the assessment in question, if it is held that his interest was not assessable, should be regarded as applicable to her interest only. An assessment upon her interest only, however, should in some way describe and identify it as her exclusive interest, as, otherwise, it would mislead purchasers, and place a cloud upon the title of the husband. This was not done in the assessment in question, which is upon "all that piece or parcel of land." etc., and not upon any specific interest in it. The advertisement of sale was in the same form, and the sale was, apparently, of the entire land, and all estate, title, and interest therein. In form, at least, it included the interest of the husband only, for the name of the wife does not appear; nor is there any suggestion that any interest except that of the husband was assessed or offered for sale.
The defendant further claims that property bought with pension moneys does not continue to be exempt, even if occupied by the pensioner and his family, provided it so increases in value as to be far beyond the needs of his family for "a safe, but modest, maintenance." It may be that this position is correct, and that, in a case where the property had largely increased in value, only a certain amount of the valuation would be exempt, and the remainder taxable. But the argument based upon this proposition, that, as the assessors had jurisdiction, it is to be presumed that their valuation of $400 was only for the excess properly assessable owing to increase in value, I do not regard as sound, under the circumstances of this case. Without reference to the question as to which party the burden of proof rested upon, I think the evidence fairly warrants the inference that there has been no substantial increase in value since the date of the purchase, which was May 13, 1885. The consideration then paid was $1,100, and no substantial improvements have been since made. It is still occupied as a dwelling-house, and not for business purposes. The fact that there is a henhouse upon the premises, consisting of a house and lot in a city, is not without significance upon the point under consideration. No other point worthy of the expression of consideration has been made. No question was raised in the answer, or made upon the trial, as to misjoinder of parties plaintiff. Upon the whole case I think the plaintiffs entitled to judgment canceling the assessment and vacating the sale, with costs.
Judgment for plaintiffs.