The opinion of the Court was delivered by

The facts of this case are set out in the decree of his Honor, Judge Witherspoon, which will be incorporated in the report of the case. The Circuit Judge decided that what is commonly known as the two-fund doctrine was not abrogated by sec. 28, art. III., of the new Constitution, as to creditors whose judgments were recovered before the adoption of the said Constitution. Mrs. Matilda E. Kohn, the homestead claimant, appealed upon exceptions which will be set out in the report of the case.

The first question raised by the exceptions which we will consider is, whether the foregoing provision of the Constitution was intended to be retroactive. The section just mentioned contains, amongst other provisions relative to the right of homestead, the following proviso, to wit: “That no waiver shall defeat the right of homestead before assignment, except it be by deed of conveyance or by mortgage, *126and only as against the mortgage debt, and no judgment creditor or other creditor whose lien does not bind the homestead shall have any right or equity to require that a lien which embraces the homestead and other property, shall first exhaust the homestead.” The following recital and subdivisions are contained in sec. 11 of art. XVII.: Section 11. “That no inconvenience may arise from the change in the Constitution of this State, and in order to carry this Constitution into complete operation, it is hereby declared: First. That all laws in force in this State, at the time of the adoption of this Constitution, not inconsistent therewith and constitutional when enacted, shall remain in full force until altered or repealed by the General Assembly, or expire by their own limitation * * * Second. All writs, actions, causes of action, proceedings, prosecutions, and rights of individuals, of bodies corporate and of the State, when not inconsistent with this Constitution, shall continue as valid. Third. The provisions of all laws which are inconsistent with this Constitution shall cease upon its adoption, except that all laws which are inconsistent with such provisions of this Constitution as require legislation to enforce them, shall remain in force until such legislation is had. Fifth. All recognizances, obligations, and all other instruments entered into or executed, before the adoption of this Constitution, to the State, or to any county, township, city or town therein, and all fines, taxes, penalties, and forfeitures due or owing to this State, or to any county, township, city or town therein, and all writs, prosecutions, actions, and proceedings, except as herein otherwise provided, shall continue and remain unaffected by the adoption of this Constitution. All indictments which shall have been .found, or may hereafter be found, for any crime or offense committed before the adoption of this Constitution, may be prosecuted as if no change had beed made, except as otherwise provided herein.” The intention of this section was, first, to prevent, as far as possible, any inconvenience that might arise by reason of the changes in the new Constitution; second, that the provisions *127of the present Constitution should not affect the laws, proceedings, rights, &c., which were not inconsistent with it at the time of its adoption; third, that laws which were inconsistent with it, but required legislation to enforce them, should not be affected by the present Constitution until such legislation was had; and, fourth, that all laws inconsistent with the present Constitution, except those that required legislation to enforce them, should cease upon the adoption of the said Constitution.

It is conceded that constitutions, like statutes, are always to be construed as acting prospectively only, unless by express language or necessary implication, it is apparent that the intention was otherwise. It is contended, however, that the two-fund doctrine in force in this State at the time the present Constitution was adopted was inconsistent with the proviso hereinbefore mentioned, and was wholly abrogated by the third subdivision just set out, even as to creditors whose judgments were recovered before the adoption of the new Constitution, or, in any event, when the act carrying into effect the said proviso was approved, to wit: 9th March, 1896 (Acts of 1896, page 190). In other words, it is contended that the said proviso was intended to have a retroactive effect. The words in the third subdivision: “The provisions of all laws which are inconsistent with this Constitution shall cease upon its adoption,” are, in effect, the usual repealing words of a statute, and have no reference to the question whether it was intended to be prospective or retroactive in its operation. The desire to prevent inconvenience, by reason of the changes in the present Constitution, and the provision in the fifth subdivision, that “all writs, prosecutions, actions and proceedings, except as herein otherwise provided, shall continue and remain unaffected by the adoption of this Constitution,” are significant as showing an intention not to interfere with existing rights. In fact, this spirit is manifested throughout the entire Constitution. It is also argued that the words, “no judgment creditor” or other creditor, in the said proviso, manifest an *128intention to apply its provisions to all judgments, whether then in existence or thereafter recovered. The words, “or other creditor,” may mean a mortgagee, but, in any event, there is nothing in the proviso showing an intention to make its provisions retroactive. As it has been shown that there was no intention to give the said proviso a retroactive effect, the exceptions raising the question, which we have just considered, are overruled.

It is also contended that the two-fund doctrine is a mere incident of the remedy, and that it does not become a right úntil proceedings are instituted in which it can be asserted. For this reason, it is argued that it should be denied in this case, even if the said proviso is not given retroactive force. We cannot sustain this view. It is true, the opportunity to assert the right was not afforded the judgment creditors until proceedings in foreclosure were instituted, but the right to assert the equity, whenever an opportunity was afforded them, existed before the Constitution was adopted.

These views render unnecessary a consideration of the other questions raised by the exceptions.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.

dissenting. While I agree that the constitutional provision invoked by appellant cannot, under the well-settled rule, be given a retroactive operation, inasmuch as no such intention is declared, in express terms, and there is no language used in the provision from which such an intention must necessarily be implied; yet I do not think it is necessary to give such constitutional provision a retroactive operation in order to afford appellant the benefit of its protection. The two-fund doctrine, as it is called, does not grow out of any contract, but out of a mere equity, which only arises out of certain circumstances; and the right to invoke its protection does not arise until the facts occur which give birth to such equity. *129It may be said, as an abstract proposition, that a person would have the right to enforce the performance of any contract which he may subsequently enter into with -another, by employing the means provided by law for that purpose; but such an abstract right cannot be regarded as a legal right until the contract is made and there is a breach of it. So here, while it may be true that when the contracts upon which the judgment creditors recovered their judgments were made, and when the judgments were obtained, such creditors, under the law as it then stood, would have had the right to invoke the equity — not, however, growing out of siich contracts — upon which the two-fund doctriné is based, whenever the mortgagee undertook to enforce his mortgage upon the property covered by the lien of such judgments, by requiring the mortgagee-first to exhaust other property upon which his mortgage was also a lien, before resorting to that property upon which alone the judgment creditors had a lien, yet that equity could only arise when the facts which gave it birth occurred; and as those facts did not occur until after the adoption of the present Constitution — the action for foreclosure having been commenced on the 6th of February, 1896 — it seems to me that the constitutional provision forbids the assertion of the equity which then, for the first time, arose. For these reasons, thus briefly indicated, as the time at my disposal will not permit any extended discussion, I am unable to concur in the conclusion reached by Mr. Justice Gary.