I concur in the affirmance of the order appealed from in this case, on the ground that the order of the county judge affirmed thereby was properly made, in the exercise of his control over the receiver, upon the peculiar facts disclosed on the motion before him.
I, however, do not assent to the doctrine that a judgment recovered against a party or an officer for an unlawful levy on and sale of property exempt by law from levy and sale under execution cannot in any case be reached by a creditor who was not a party or privy thereto, or interested therein, and who in good faith seeks to apply it to his own debt. Such a judgment is not only for the value of the exempt property, but includes also the cost of the action, which, in many cases, might and probably would exceed such value. Cases may also arise where the exempt property had been replaced by the judgment debtor, on a purchase with money beyond the reach of an execution, by other property of the same character, and for which he had received the benefit of the exemption allowed by law, as against the execution of such other creditor. In that case it would not be proper to give him an additional exemption also for the judgment recovered for the wrongful levy. A court of equity can, by the control it has over a receiver appointed by it, always do justice to a party really and in fact aggrieved by a proceeding instituted to reach the value of the exempt property included in such judgment, *Page 193 where the particular and peculiar facts to warrant it are specially presented.
The present case appears to be of that character.
All concur for affirmance.
Judgment affirmed.