cumbered; and appeilant could unmistakably determine what, if any, of such property he had in his possession under the levy. No duty or burden was thrown upon him to determine whether or not any particular property was in fact free. That question was entirely immaterial for the purposes of respondent’s selection. The material matter was whether or not he understood exactly what respondent included in the term “free property;” and we hold, under the circumstances, that he must have so understood, and we do so the more readily because appellant, in his testimony, admits that the term was frequently used in the various conversations on the subject, and makes no claim that he did not fully understand it. “It is enough if it [the election] is made to the levying officer in a way in which he cannot, or ought not to, misunderstand it.” Thomp. Homest. & Ex. § 834.
But in this connection, and in some manner not disclosed by the record, the jury was permitted to make a serious error. Turning to the verdict, we find among the property, the value of which made up the verdict, the following: ‘One note and mortgage from Thomas Larkin to plaintiff for six hundred and fifty dollars.” Neither the schedule nor the appraisement contains any mention of any note; but this arises from an inaccurate use of terms, as both lists speak of a mortgage for $650 from Thomas Larkin to plaintiff, but describes the same as “assigned to B. F. Gannon as collateral security.” The material thing is the note. If that is not contained in the sworn schedule, then, under the statute, it cannot be claimed as exempt. If, on the other hand, it be claimed that the note is sufficiently described by the description of the mortgage that secures it, then most certainly it is excluded from the list of “free property,” and was not, under the instructions of the trial court, legally selected by respondent as one of his exemptions. In either event, its value cannot be recovered in this case. The only testimony as to the value of the note is that of respondent himself, who swears that it was “good;” and, as its face value was 3650, we are bound to presume that the jury placed it at that sum in making up their verdict. This point as to excessive valuation of property claimed as exempt is fairly raised under
