L. H. Dellinger v. . A. G. Tweed

Hitherto, the only objection to homestead exemption has been, not that it violates the Constitution of the State — for it is in that instrument it is provided for — nor yst, that it violates public policy — for it is in universal favor —bat, the objection has been, that it was in violation of the Constitution of the United States, which forbids a State to pass a law which impairs the obligation of contracts.

This case steers clear of that objection, for hero was no contract at all, but a tort. This case, therefore, involves nothing but a construction of our State Constitution, the rule in regard to which is, that we must seek for its meaning, by the consideration of its language, and its common acceptation, making sense.

If the object oi the Constitution was' to defeat creditors, it was a wicked purpose, and in conilict with the Constitution of the United States. If the purpose was to secure homesteads, then it was a commendable purpose, and quite within the power of the State. It is but common respect to the intelligence and virtue of the people, as assembled in Convention, to suppose that they intended to do the latter. The article upon the subject in the Constitution, is entitled “Homesteads and Exemptions and secures a homestead to every man who lias one, and to his family without regard to his indebtedness. The object being, to establish homesteads, as institutions in the family economy, and in the interest of society. And if debts stand in tbe way, they must go by the hoard,” as anything .else must, not by design, but incidentally. And yet .it is amazingly common, to hear it discussed, whether it was intended to defeat this or that debt; whereas, it was intended to defeat nothing, but to secure a homestead. And, therefore, if a debt come in the way — that must give way ; and if damages for torts come in the way — they must give way.

Against this view, it is objected that the words used are? “ any debt,”, and that debt is necessarily founded on a contract. And, therefore, while the homestead cannot be sold underex-*211ccution at all, yet, it may be sold under an execution obtained on Vi tort, or on damages.

To ibis jfc is answered, that if tb« language of tbo Constitution, is to bo understood in the ieehniee.l sense of the term used, then, there is no homestead exemption at all; for it was neverIcnown that an execution issued, or v/as obtained upon a debt, or upon a contract, oy upon a tort, or upon damages. An execution, in all cases, issues or is obtained' upon a judgment. Bo that, instead of reading «.ho Constitution as it is, “rludl be exempted from salo undov execution, or other final process, obtained vv.y debt,” we ¡mrf read it as it must necessarily mean, to make sense, “shall be exempted from sale under execution obtained on any judgment j or else we must hold a judgment to mean a debt, as clearly it does. And then, the manifest intention will be carried out, that the homestead shall not bo sold under execution at ally except in the cases named in the Constitution. But then, it is asked, if the Constitution jnoa no judgment instead of debt, why did it not say so ? It may just as well be asked, if it meant contract, why did it not say so ? It does say plainly enough, and expressly that it shall not be sold under execution, and that was the main idea to which the Convention was advertent; and it was inadvertent in describing upon what the ex-execution was to issue, as well it might be, because an execution cannot issue except upon & judgment.

We admit, that a plausible argument against this view, is founded, upon the impolicy of allowing a man to commit torts, with impunity. But we think, a still more plausible argument might be founded upon the impolicy of allowing a man, to avoid debts, with impunity. But the Constitution does neither. It, has nothing to do with allowing men to commit torts, or to avoid debts. It, looks away from these, not as favoring them, but to the paramount object, of establishing homesteads.

Our attention has been called to decisions, in two or three *212¡sister States, where the homestead has been sustained, as against torts, and we know of no decision to the contrary.

No Error. Affirmed.

dissenliente. The ruling, in Hill v. Kesler, that the words “any debt,” as used in the Constitution, embrace preexisting debts, as well as debts contracted after the adoption of the Constitution, certainly gives to the words their fullest extension. As to debts contracted afterwards, there was no difficulty, fox’, a man in giving credit could have an eve to the existing state of things. As to pre-existing debts, there was vei’y great difficulty. On the one hand, the prohibition of the Constitution of the United States, as to impairing the obligation of contracts — on the other, the necessity for relief, to a people who, by the loss of their slave property, and other consequences of the late disastrous war, wei’e unable to pay their debts, without being deprived of the means of subsistence. Upon this latter view of the question, there has been a wary general acquiescence, on the part of the profession and of the people, in the decision made, by a majority of the Court. Certainly there has been no desire on the part of the Courts of the State, to disturb Hill v. Kesler. After these “two little words” had been allowed to have so large an effect, taking them in one sense, the attempt to press them again into service, for a different field of action, and, in a sense entirely different, so as to make them embrace damages for tort, and injuries caused by misfeasance, does not, as it seerps to me, come with a very good grace. The ground of “a necessity for relief,” which was the main consideration in Hill v. Kesler, has no application and there is no context or subjunctive words which can have the effect to extend the naked meaning of the word “debt”— for instance, in the Constitution of the State of Ohio, after the words “any debt,” the words or “other liabilities” are super-added. Upon these latter words, the Court puts its construction, that the homestead is exempted from sale for damages *213assessed in actions for tori. There are no words to that effect, in the Constitution of the State of North Carolina, and the construction tons wholly upon the words “any debt,” unaided by considerations of necessity, or any collateral matter.

The ordinary meaning of the word “deb t,” is, a sum of money due to another by contract. The relation of debtor and creditor implies, as of course, that the one has given credit to, that is, trusted the other, in a contract.

It is true, the word debt is sometimes used in a broader sense. One pays a debt to nature when he dies ; he pays a debt to justice when he is hung for murder ; he pays a debt to the State, when fined for a misdemeanor; he pays a debt to the party injured by slander or other private wrong, when he satisfies the damages assessed by the jury.

I cannot bring my judgment, to the conclusion, that the word is used by the Constitution in this broad and figurative sense, To give it that construction, will carry the remedy beyond the mischief, and, instead of providing home and the means of subsistence for unfortunate debtors, by putting a certain amount of property beyond the reach of creditors, to meet a pressing necessity growing out of the consequences of the war, the effect of the construction will be, to grant impunity to wilful wrongs and injuries to private rights, without any special necessity caused by the war, and thus make a most important change of the law, in respect to the rights of person and rights of property, merely for the sake, of making a change. If, such was the purpose, every principle of construction, called for the use, of plain and unequivocal words to express the intention.

There is another view of the subject entitled to much weight. This change in the law, will in nine cases out of ten, take from the party injured all civil remedy for redress; he is not obliged to trust any one hereaíter, so as to become his creditor by contract, unless he may choose to do so, but, how can a man pre-rent another from uttering slander or seducing a daughter, or *214from instituting a malicious prosecution, if he has no mode of recovering damages ? The only way, to protect our good citizens from such injuries, would be, to provide a public remedy in the stead of the private remedy, by making all such injuries, indictable as misdemeanors. In the- absence of such a provision, the conclusion is forced upon me, that the Constitution did not mean to make so important a change, by which, every one is put at the mercy of the vicious and ill-disposed, and will be driven in the absence of all protection, either by indictment or by civil action which can be made effectual, to take the law, into his own hands.

PEARSON, C. J., and RODMAN, J., dissentientibus. The complaint alleges, in substance, that the plaintiff had recovered judgment in an action for defamation against one, McPeters, in the Superior Court of Yancey county, at Spring Term 1869; that he caused execution to issue thereon, and, to be placed into the hands of the defendant, the Sheriff of Madison county, with a notification that the same was issued upon a judgment in a case of slander; that, notwithstanding, the said Sheriff had summoned appraisers, and caused a homestead to be laid off to McPeters, and returned that fact and nihil ultra: that McPeters had property amply sufficient to satisfy said execution, which the Sheriff neglects and refuses to sell — and then demands judgment. c. To this complaint a demurrer was interposed, general in character, special in form. His Honor, on consideration, rendered judgment in favor of *Page 207 the defendant, and, the plaintiff appealed. The appeal was argued at January Term 1871, by Hitherto, the only objection to homestead exemption has been, not that it violates the Constitution of the State — for it is in that instrument it is provided for — nor yet, that it violates public policy — for it is in universal favor — but, the objection has been, that it was in violation of the Constitution of the United States, which forbids a State to pass a law which impairs the obligation of contracts.

This case steers clear of that objection, for here was no contract at all, but a tort. This case, therefore, involves nothing but a construction of our State Constitution, the rule in regard to which is, that we must seek for its meaning, by the consideration of its language, and its common acceptation, making sense.

If the object of the Constitution was to defeat creditors, it was a wicked purpose, and in conflict with the Constitution of the United States. If the purpose was to secure homesteads, then it was a commendable purpose, and quite within the power of the State. It is but common respect to the intelligence and virtue of the people, as assembled in Convention, to suppose that they intended to do the latter. The article upon the subject in the Constitution, is entitled "Homesteads and Exemptions;" and secures a homestead to every man who has one, and to his family without regard to his indebtedness. The object being, to establish homesteads, as institutions in the family economy, and in the interest of society. And if debts stand in the way, they must "go by the board," as anything else must, not by design, but incidentally. And yet, it is amazingly common, to hear it discussed, whether it was intended to defeat this or that debt; whereas, it was intended to defeat nothing, but to secure a homestead. And, therefore, if a debt come in the way — that must give way; and if damages for torts come in the way — they must give way.

Against this view, it is objected that the words used are "any debt," and that debt is necessarily founded on a contract. And, therefore, while the homestead cannot be sold under *Page 211 execution at all, yet, it may be sold under an execution obtained on a tort, or on damages.

To this it is answered, that if the language of the Constitution, is to be understood in the technical sense of the term used, then there is no homestead exemption at all; for it was never known that an execution issued, or was obtained upon a debt, or upon a contract, or upon a tort, or upon damages. An execution, in all cases, issues or is obtained upon ajudgment. So that, instead of reading the Constitution as it is, "shall be exempted from sale under execution, or other final process, obtained any debt," we must read it as it must necessarily mean, to make sense, "shall be exempted from sale under execution obtained on any judgment." or else we must hold a judgment to mean a debt, as clearly it does. And then, the manifest intention will be carried out, that the homestead shall not be sold under execution at all, except in the cases named in the Constitution. But then, it is asked, if the Constitution means judgment instead of debt, why did it not say so? It may just as well be asked, if it meant contract, why did it not say so? It does say plainly enough, and expressly that it shall not be sold under execution, and that was the main idea to which the Convention was advertent; and it was inadvertent in describing upon what the execution was to issue, as well it might be, because an execution cannot issue except upon a judgment:

We admit, that a plausible argument against this view, is founded, upon the impolicy of allowing a man to commit torts, with impunity. But we think, a still more plausible argument might be founded upon the impolicy of allowing a man, to avoid debts, with impunity. But the Constitution does neither. It, has nothing to do with allowing men to commit torts, or to avoid debts. It, looks away from these, not as favoring them, but to the paramount object, of establishing homesteads.

Our attention has been called to decisions, in two or three *Page 212 sister States, where the homestead has been sustained, as against torts, and we know of no decision to the contrary.

NO ERROR. Affirmed.