delivered the opinion of the court.
“The principal issues,” quoting from the abstract of record filed by defendant, “are: Does the new matter set up in the reply plead statutory exemption? And, was the judgment based on sufficient evidence?” The questions can best be answered by first directing attention to the language of the statute and noting its scope and meaning.
1, 2. The material part of the statute, which measures the rights of the plaintiff, reads thus:
“All property # * of the judgment debtor, shall be liable to an execution, except as in this section provided. The following property shall be exempt from execution, if selected and reserved by the judgment debtor or his agent at the time of the levy, or as soon thereafter before sale thereof as the same shall be known to him, and not otherwise: * * 3. The * * team, vehicle, harness # * necessary to enable any person to carry on the trade, occupation or profession by which such person habitually earns his living, to the value of $400”: Chapter 13, Laws 1915, amending Section 227, L. O. L.
If the wagon, team and harness were necessary to enable Childers to carry on the occupation by which he habitually earned his living, then he was entitled to a return of the property, provided the claim of exemption was made at the time of the levy or as soon thereafter as it became known to him. Since exemption statutes are remedial in character, they are given a liberal construction: Blackford v. Boak, 73 Or. 61 (143 Pac. 1136); Tishomingo Sav. Inst. v. Young, 87 Miss. 473 (40 South. 9, 112 Am. St. Rep. 454, 6 Ann. Cas. 776, 3 L. R. A. (N. S.) 693). And this rule of construction must constantly be kept in mind when interpreting, the words found in the statute.
Standing alone, the word “occupation” means:
“The principal business of one’s’life”: Webster Diet.
‘ ‘ Habitual or stated employment ’ ’: Cent. Diet. ‘ ‘ Vocation, calling, trade, the business in which one principally engages to secure a living, the employment by which one generally gets his living”: 3 Words and Phrases (Second Series), 685; 29 Cyc. 1344. The term “occupation” is comprehensive in its signification and includes any employment in which a person is engaged to procure a living: 12 Am. & Eng. Ency. of Law (2 ed.), 105. The statute itself defines the term so as to include only the occupation by which a person “habitually earns his living,” and therefore the team, wagon and harness were exempt if they were reasonably necessary, or convenient, or suitable to enable Childers to carry on the employment by which he habitually earned his living.
3. It is not essential that the property should have been used exclusively to carry on the occupation by which he habitually earned his living because an occasional use for other purposes will not defeat the right of exemption: 12 Am. & Eng. Ency. of Law, 132; Stanton v. French, 91 Cal. 274 (27 Pac. 657, 25 Am. St. Rep. 174); 11 R. C. L., p. 519. The right of exemption is not lost if the owner is not actually using the property in his occupation at the very time of the levy, nor is the privilege extinguished if the owner is tern
4. The statute confers upon the debtor the right to select and reserve a team, vehicle and harness without being obliged to show that he has no other like property. There is no duty resting upon the debtor to prove that he has no other property nor to point out other property to the sheriff, even though he owns additional property of the same kind. If Childers owned more than two horses it was nevertheless his right to select any two horses he wished, and then protect them by exercising his right of exemption: Thibault v. Lennon, 39 Or. 280, 283 (64 Pac. 449, 87 Am. St. Rep. 657).
5, 6. A strict application of the language of the statute would require the debtor to assert his right of redemption “at the time of the levy” or “as soon” as the levy shall be known to him, but the words employed are softened and relieved of any undue severity when viéwed in the light of the rule of liberal construction. While it is true that, as taught in Harrisburg Lumber Co. v. Washburn, 29 Or. 150, 161 (41 Pac. 390), the right of exemption is a privilege, which it must be conceded can be waived by the consent of the debtor or by his failure to .assert his rights (12 Am. & Eng. Ency. of Law (2 ed.), 191; 11 R. C. L., p. 539), nevertheless a failure to select exempted property at the exact time of a levy, even though the debtor is present, will not alone operate as a waiver because the debtor has a reasonable time after he knows of the levy to claim his exemption. If the words “at the time of the
7. We now notice the objections made by the defendant. Complaint is made because the demurrer to the reply was overruled. At the outset it must be premised that the seizure made by the sheriff cannot be avoided, unless the plaintiff alleges and proves a situation which brings the property within the exemption statute. The burden is on the claimant, and he must aver and establish every fact essential to the exemption: Gollnick v. Marvin, 60 Or. 312, 316 (118 Pac. 1016, Ann. Cas. 1914A, 243); Thibault v. Lennon, 39 Or. 280, 284 (64 Pac. 449, 87 Am. St. Rep. 657); Stewart v. McClung, 12 Or. 431, 436 (8 Pac. 447, 53 Am. Rep. 374); 11 R. C. L., p. 558; 18 Cyc. 1493.
9. One assignment of error is predicated upon the failure of the court to give a cautionary instruction requested by the defendant. The court had a right to use his discretion: Scheurmann v. Mathison, 67 Or. 419, 424 (136 Pac. 330); Nordin v. Lovegren Lumber Co., 80 Or. 140 (156 Pac. 587). After inspecting the record we cannot say that the trial judge abused the discretion vested in him, or that the defendant was injured in any way.
10. Other instructions requested by the defendant and refused by the court were either given in substance or properly refused, because containing expressions
11. There was evidence to sustain every material fact which the plaintiff was required' to establish, and, while there was conflicting evidence, the verdict of the jury forecloses any inquiry into the credibility of the witnesses or the weight of their testimony.
The judgment is affirmed. Affirmed.