The opinion of the court was delivered June 12, by
Chambers, J.'The single question presented in this case is whether a debtor, whose farm of about 65 acres was sold at sheriff’s sale, has a right to claim out of the proceeds of sale $300 under the provisions of the act of 9th April 1849, on a notice to the sheriff of his claim after such sale.
The act referred to is a humane law, and as such is entitled to a liberal construction. But while benevolence is to be indulged, we are not to disregard the rights of creditors, or overlook the provisions of the law in favor of the unfortunate debtor to be complied with on his part to entitle him to this bounty.
The sheriff is to proceed with the executions directed to him, by levying upon and selling the property, personal or real, of the debtor; and shall, if requested by the debtor, summon three disinterested persons, who shall be sworn or affirmed, to appraise the property, which the debtor may elect to retain under the provisions of this act. The property thus chosen and appraised, to the value of $300, is to be exempt from levy and sale on execution or warrant, except for taxes.
By the 3d section it is provided, that if the property levied on consists of real estate of greater value than $300, and the defendant elects to retain real estate amounting in value to the whole sum of $300, or any less sum, the appraisers are to determine whether the real estate can be divided without injury to the whole; and if it can be so divided, they are to set apart so much as will answer the requirement of the defendant, designating the same by *304metes and bounds; of all which a return is to be made to the court .in connection with the writ.
And by the 4th section it is declared, that if a part of the real estate has been set off, the vend. exp. issued, is to sell the residue ; but if no division is made as provided, the whole is to be sold, and, in the latter case, the defendant is to receive of the proceeds of the sale so much as he would have received at the appraised value, had the said real estate been divided-. This act contemplates the debtor getting property at an- appraisment as his exemption where practicable ; and the right to demand the money out of proceeds of sale, is only in the last resort, when property did not admit of separation.
The debtor, George Lee, made no request to the sheriff, who represented the creditors, to summon appraisers, or gave any notice what property he elected to retain, but is silent, and permits the sheriff to proceed with the sale, at which the brother of the debtor becomes the purchaser. The sum bid for the property by the junior judgment creditor was sufficient to cover the record liens, if the $300 are not withdrawn for the debtor. The omission to give notice would have the tendency of misleading creditors; and in behalf of the junior judgment creditor it is testified that if the claim of the debtor to the exemption had been made even before the sale, he would have bid the property to an amount that would have covered it and the prior judgments. The silence of the debtor during the whole course of the proceedings in execution can scarcely, under the circumstances, be imputed to ignorance of the law, more especially when it appears that as a debtor he had claimed and retained on a former execution the exemptions allowed of personal property under the acts of 1836 and 1846. Ignorance of the law is not an excuse, and it is not for a debtor to plead that ignorance when the provision of law was one of great notoriety, and which conferred on him so substantial a favor. It is the gratuity of the law, which he ought to be satisfied to tahe under the provisions and guards which the law granting it has imposed, and which are neither expensive, onerous, or unreasonable. The provisions introduced into this act by legislative discretion are not to be dispensed with by the debtor as useless, and are not to be disregarded by the court in the construction and execution of the law.
There is not in this case an analogy to the claim of the landlord to one year’s rent on notice to the sheriff before the money is paid over, as decided in Ege v. Ege, 5 Watts 139. In that case, the claim is for an existing debt which by law is preferred, and by the act of Assembly the sheriff was directed to pay over after the sale one year’s rent to the landlord.
Under the act of 1849 we do not decide when the request must be made by the debtor to the sheriff to summon appraisers, but we *305think it ought to be made at least befoie the inquisition, and the omission to make it or give notice of the claim before the sale of the realty, is such a failure to comply with the provisions of the law as in the opinion of the court bars the claim of the debtor.
The decree of the court below ordering that the money be paid to George Lee is reversed.