# Edwards v. Kearzey

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## Concurring Opinions

    Clifford
    Hunt
United States Supreme Court
96 U.S. 595
Edwards v. Kearzey
ERROR to the Supreme Court of the State of North Carolina.
This action was commenced by Leonidas C. Edwards, March 31, 1869, in the Superior Court of Granville County, North Carolina, against Archibald Kearzey, to recover the possession of certain lands in that county. They were levied upon and sold by the sheriff, by virtue of executions sued out upon judgments rendered against Kearzey, on contracts which matured before April 24, 1868, when the Constitution of North Carolina took effect, the tenth article of which exempts from sale under execution or other final process, issued for the collection of any debt, the personal property of any resident of the State, and 'every homestead, and the dwelling and buildings used therewith, not exceeding in value $1,000, to be selected by the owner thereof.' Prior to that date, under statutes since repealed, certain specified articles of small value, and such other property as the freeholders appointed for that purpose might deem necessary for the comfort and support of the debtor's family, not exceeding in value $50 at cash valuation, and fifty acres of land in the county and two acres in the town of not greater value than $500, were exempt from execution. The lands in question were owned and occupied by Kearzey as a homestead, and as such were set off to him pursuant to the mode prescribed by the legislation for carrying the constitutional provision into effect. He had no other lands, and they did not exceed $1,000 in value.
Edwards was the purchaser at the sheriff's sale of said lands, and received a deed therefor.
The court found for Kearzey, upon the ground that so much of said art. 10 as exempts from sale, under execution or other final process obtained on any debt, land of the debtor of the value of $1,000, and the statutes enacted in pursuance thereof, embrace within their operation executions for debts which were contracted before the adoption of said Constitution; and that said article and said statutes, when so interpreted and enforced, are not repugnant to art. 1, sect. 10, of the Constitution of the United States, which ordains that no State shall pass any law impairing the obligation of contracts.
Judgment having been rendered upon the finding, it was, on appeal, affirmed by the Supreme Court of the State. Edwards then sued out this writ of error.
Mr. Joseph B. Batchelor and Mr. Edward Graham Haywood for the plaintiff in error.
A law of a State, which is impeached upon the ground that it impairs the obligation of a contract, derives no additional authority as against the prohibition of the Federal Constitution, by reason of the fact that it is embodied in a State Constitution. Railroad Company v. McClure, 10 Wall. 511; White v. Hart, 13 id. 646; Gunn v. Barry, 15 id. 610; Jefferson Branch Bank v. Skelly, 1 Black, 436; Dodge v. Woolsey, 18 How. 331.
Such a law, exempting from sale under execution any substantial part of the debtor's property not so exempt at the time the debt was contracted, impairs the obligation of the contract, and is repugnant to the Constitution of the United States, and void. Gunn v. Barry, supra; Nichols's Assignee v. Eaton et al., 91 U.S. 716; Green v. Biddle, 8 Wheat. 1; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 id. 608; Planters' Bank v. Sharp, 6 id. 301; Von Hoffman v. Quincy, 4 Wall. 535; Lessley v. Phipps, 49 Miss. 790; The Homestead Cases, 22 Gratt. (Va.) 266.
The decisions of this court have given a uniform construction to the constituional provision which prohibits a State from passing any law impairing the obligation of contracts. From them the following propositions are adduced:--1. The obligation of a contract is the duty of performance according to its terms, the remedy or means of enforcement being a part of the 'obligation,' which the States cannot by legislation impair. The municipal law enters into and forms a part of this obligation, and to that the contracting parties must be considered as referring, in order to enforce performance.
2. The State, if it modifies the remedy, must provide one as efficient and substantial as that subsisting when the contract was made.
3. The remedy is inseparable from the obligation, otherwise the contract would be of the nature of those imperfect obligations or moral duties, subject to the mere caprice and will of individuals.
4. Whilst the State is left free to prescribe the modes of suit and forms of process, it cannot clog the remedy with conditions and restrictions so as materially to impair its efficiency. Fletcher v. Peck, 6 Cranch, 87; Green v. Biddle, 8 Wheat. 1; Sturges v. Crowninshield, 4 id. 122; Ogden v. Saunders, 12 id. 213; Broson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 id. 608; Curran v. Arkansas, 13 id. 304; Freeman v. Howe, 24 id. 450; Von Hoffman v. Quincy, 4 Wall. 535; Hawthorne v. Calef, 2 id. 10; White v. Hart, 13 id. 646; Gunn v. Barry, 15 id. 610; Walker v. Whitehead, 16 id. 314.
Mr. A. W. Tourgee, contra.
The decided cases to not affirm that the obligation of a contract includes the whole remedy, 2 Kent, Com. 397; 3 Story, Com., sect. 1392; Sturges v. Crowinshield, 4 Wheat. 122; Mason v. Haile, 12 Id. 370; Beers v. Haughton, 9 Pet. 329; Cook v. Moffat, 5 How. 295; but, on the contrary, courts have declared that the remedy is no part of the obligation. Moore v. Gould, 11 N. Y. 281; Jacobs v. Smallwood, 63 N. C. 112; Hill v. Kessler, id. 437; Garrett v. Cheshire, 69 id. 396; Wilson v. Sparks, 72 id. 208; Edwards v. Kearzey, 75 id. 409. The precise question which this record presents may therefore be considered an open one. The homestead provision of the Constitution of North Carolina does not deny the creditor's right, but regulates the manner in which it shall be enforced.
It affects his remedy only incidentally, in the performance of a high public behest. The safety and health of the Commonwealth are above private right. The sacredness of private property must yield to the imperious demands of public necessity. When two rights are in conflict, the greater must prevail. Munn v. Illinois, 94 U.S. 113; Chicago, Burlington, & Quincy Railroad Co. v. Iowa, id. 155; Peik v. Chicago & North-Western Railway Co., id. 164.
MR. JUSTICE SWAYNE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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