EDWARDS v. KEARZEY.

(74 N. C. 241.)

SUPREME COURT OF THE UNITED STATES.

*OCTOBER TERM, 1877.*

#### Leonidas C. Edwards, Plaintiff in Error, v. Archibald Kearzey.

In error to the Supreme-Court of the State of North Carolina.

Mr. Justice Swayne

delivered the opinion of the Court.

The constitution of North Carolina of 1868 took effect on the 24th of April in that year. Sections 1 and 2 of article X. declare that personal property of any resident of the state, of the value of five hundred dollars, to be selected by such resident, shall be exempt from sale under execution or other final process issued for the collection of any debt; and that every homestead and the buildings used therewith, not exceeding in value one thousand dollars, to be selected by the owner, or in lieu thereof, at the option of the owner, any lot in a city,, town or village, with the buildings used thereon, owned and occupied by any resident of the state, and not exceeding in value one thousand dollars, shall be exempt in like manner from sale for the collection of' any debt under final process.

On the 22d of August, 1868, the legislature passed an act which prescribed the mode of laying off the homestead and setting off the personal property so exempted by the constil ution. On the 7th of April, 1869,'another act-was passed, which repealed the prior act and prescribed a different mode of doing what the prior act provided for. This latter act has not been repealed or modified.

Three several judgments were recovered against the defendant in error — one on the 15th of December, 1868, upon a bond dated the 25th of September, 1865 ; another on the 105h of October, 1868, upon a bond dated February 27, 1866 ; and the third on the 7th of January, 1868, for a debt due prior to that time. Two of these judgments were docketed and became liens upon the premises in controversy on the 16th of December, 1868. The other one was docketed and became such lien on the 18th of January, 1869. When the debts were contracted for which the judgments were-rendered the exemption laws in force were the acts of January 1, 1854, and of February 16th, 1857. The first-named act exempted certain enumerated articles of inconsiderable 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 fifty dollars at cash valuation.”' *665By the act of 1859 the exemption was extended to fifty acres of land in the county or two acres in a town, of not greater value than five hundred dollars.

On the 22d of January, 1869, the premises in controversy were duly set off to the defendant in error as a homestead. He had no other real estate, and the premises did not exceed a thousand dollars in value. On the sixth of March, 1869, the sheriff, under executions

issued on the judgments, sold the premises to the plaintiff in error, and thereafter executed to him a deed in due form. The regularity of the sale is not contested.

The act of August 22, 1868, was then in force. The acts of 1854 and 1859 had been repealed. *Wilson v. Sparks,*72 N. C. R., 211. No point is made upon these acts by the counsel upon either side. We shall, therefore, pass them by without further remark.

The plaintiff in error brought this action in the Superior Court of Granville county to recover possession of the premises so sold and conveyed to him. That Court adjudged that the exemption created by the constitution and the act of 1868 protected the property from liability under the judgments, and that the sale and conveyance by the sheriff were, therefore, void. Judgment was given accordingly. The Supreme Court of the State affirmed the judgment. The plaintiff in error thereupon brought the case here for review. The only federal question presented by the record is, whether the exemption was valid as regards contracts made before the adoption of the constitution of 1868.

The counsel for the plaintiff in error insists upon the negative of this proposition. The counsel upon the other side, frankly conceding several minor points, maintains the affirmative view. Our remarks will be confined to this subject.

The Constitution of the United States declares that “ no State shall paas any * * * law impairing the obligation of contracts,”

A contract is the agreement of minds, upon a sufficient consideration, that something specified shall be done, or shall not be done.

The lexical definition of *impair*is “to make worse ; to diminish in quantity, value, excellence, or strength; to lessen in power; to weaken; to enfeeble ; to deteriorate.” — Webster’s Die.

*Obligation*is defined tobe “the act of obliging or binding; that which obligates; the binding power of a vow, promise, oath, or contract,” &c. — Idem.

“ The word is derived from the Latin word *obligatio,*tying up ; and that from the verb *obligo,*to bind or tie up ; to engage by the ties of a promise or oath or form of law ; and *obligo*is compounded of the verb *ligo,*to tie or bind fast, and the preposition *ob,*which is prefixed to in*666crease its *meaning.”*—Blair v. *Williams*and *Lapsley*v. *Brashears,*4 Littel, 65.

The obligation of a contract includes everything within its obligatory scope. Apaong these elements nothing is more important than •the means of enforcement. This is the breath of its vital existence. ■Without it, the contract, as such, in the view of the law, ceases to be and falls into the class of those “imperfect obligations,” as they are termed, which depend for their fulfillment upon the will and conscience of those upon whom they rest. The ides» of right and remedy are inseparable. “ Want of right and want of remedy are the same thing.” — 1 Bao. Abr., tit. Actions in General, letter B.

In *Von Hoffman*v. *Quincy,*4 Wall., 552, it was said : “A statute of frauds embracing pre-existing parol contracts not before required to be in writing would affect its validity. A statute declaring that the word *ton*should, in prior as well as subsequent contracts, be held to mean half or double the weight before prescribed, would affect its construction. A statute providing that a previous contract of indebtment may be extinguished by a process of bankruptcy, would involve its discharge, and a statute forbidding the sale of any of the debtor’s property under a judgment upon such a contract, would relate to the remedy.”

It cannot be doubted, either upon principle or authority, that each •of such laws would violate the obligation of the contract, and the last not less than the first. These propositions seem to us too clear to require discussion. It is also the settled doctrine of this court that the laws which subsist at the time and place of making a contract enter into and form a part of it as if they were expressly referred to or incorporated in its terms. This rule embraces alike those which affect its validity, construction, discharge and *enforcement.*—Von *Hoffmann*v. *Quincy, supra; McCracken*v. *Hayward,*2. How., 612.

In *Greene*v. *Biddle,*8 Wheat, 92, this court said, touching the point here under consideration : “ It is no answer that the acts of Kentucky now in question are *regulations of the remedy*and not of *the right to the lands.*If these acts *so change the nature and extent of existing remedies*•as *materially to impair*the rights and interests of the owner, they are .just as much a violation of the compact as if they *overiwmed*his rights ■and interests.”

“One of the tests that a contract has been impaired is that *its vahie .has by legislation been diminished.*It is not by the constitution to lie impaired at all. This is not a question of degree or manner or cause, but of encroaching in any respect on its obligation — dispensing with •any part of its *force.”*—Planters’ *Bk.*v. *Sharp et. al.*6 How. 327.

It is to be understood that the encroachment thus denounced must be material. If it be not material it will be regarded as of no account.

*667These rules are axioms in the jurisprudence of this Court. We think they rest upon a solid foundation. Do they not cover this case ? and are they not decisive of the question before us?

We will, however, further examine the subject.

It is the established law of North Carolina that stay laws are void, because they are in conflict with the national Constitution. *Jacobs*v. *Smallwood,*63 N. C. R., 112; *Jones*v. *Crittenden,*1 Car. Law, *385; Barnes*v. *Barnes,*8 Jones, 366. This ruling is clearly correct. Such laws change a term of the contract by postponing the time of payment. This impairs its obligation by making it less valuable to the creditor. But *it does this solely by operating on the remedy..*The contract is not otherwise touched by the offending law. Let us suppose .a case. A party recovers two judgments — one against A, the other against B — each for the sum of fifteen hundred dollars upon a promis■sory notes. Each debtor has property worth the amount of the judgment and no more. The legislature thereafter passes a law declaring that all past and future judgments shall be collected “in four equal •annual instalments.” At the same time another law is passed which •exempts from execution the debtor’s property to the amount of fifteen hundred dollars. The Court holds the former law void and the latter valid. Is not such a result a legal solecism? Can the two judgments be reconciled ? One law postpones the remedy, the other destroys it— except in the contingencey that the debtor shall acquire more property —a thing that may not occur, and that cannot occur if he die before the acquisition is made. Both laws involve the same principle and rest on the same basis. They must stand or fall together. The concession that the former is invalid cuts away the foundation from under the latter. If a State may stay the remedy for one fixed period, however short, it may for another, however long. And if it may exempt property to the amount here in question, it may do so to any amount. This, as regards the'mode of impairm ent we are considering, would annul the inhibition of the Constitution, and set at naught the salutary restriction it was intended to impose.

The power to tax involves the power to *destroy.*—McCulloch v. *Maryland,*4 Wheat., 430. The power to modify at discretion the remedial part of a contract is the same thing.

But it is said that imprisonment for debt may be abolished in all •cases, and that the time prescribed by a statute of limitations may be .abridged.

Imprisonment for debt is a relic of ancient barbarism. — Cooper’s •Justinian, 658; 12 Tables, Tab. 3. It has descended with the stream of time. It is a punishment, rather than a remedy. It is right for fraud, but wrong for misfortune. It breaks the spirit of the honest *668debtor, destroys his credit, which is a form of capital, and dooms him,, while it lasts, to helpless idleness. Where there is no fraud it is the-opposite of a remedy. Every right-minded man must rejoice when' such a blot is removed from the statute book.

(But upon the power of a State, even in this class of cases, see the strong dissenting opinion of Washington, J., in *Mason*v. *Hale, 12*Wheat, 370.)

Statutes of limitation are statutes of repose. They are necessary to-the welfare of society. The lapse of time constantly carries with it • the means of proof. The public as well as individuals are interested in the principle upon which they proceed. They do not impair the-remedy, but only require its application within theddme specified. If the period should be unreasonably short and designed to defeat the remedy upon pre-existing contracts, which was part of their obligation, we should pronounce the statute void. Otherwise we should abdicate the performance of one of our most important duties. The obligation of a contract cannot be *substantially*impaired in any way by a State law. This restriction is beneficial to those whom it restrains, as well as to others. No community can have any higher public interest than in the faithful performance of contracts and the honest administration of justice. The inhibition of the Constitution is wholly prospective. The States may legislate as to contracts thereafter made as they may see fit. It is only those in existence when the hostile law is passed that are protected from its effect.

In *Bronson*v. *Kenzie,*1 How., 311, the subject of exemptions was touched upon, but not discussed. There a mortgage had been executed in Illinois. Subsequently the legislature passed a law giving the mortgagor a year to redeem after sale under a decree, and requiring' the land to be appraised, and not to be sold for less than two-thirds off the appraised value. The law was held to be void in both particulars-as to pre-existing contracts. What is said as to exemptions is entirely *obiter,*but coming from so high a source, it is entitled to the most respectful consideration. The Court, speaking through Chief Justice Taney, said : A state *“*may, if it thinks proper, direct that the necessary implements of agiiculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been considered in every civilized community as properly belonging to the remedy, to be executed or not by every sovereignty, according to its own views of policy and humanity.” He quotes with approbation the passage which we have quoted from *Greene*v. *Biddle.*To guard against possible misconstruction, he is careful to say further *: “*Whatever belongs merely to the remedy may *669"be altered according to the will of the State, *provided the alteration ■does not impair the obligation of the contract.*But if that effect is produced, it is immaterial whether it is done by acting on the remedy, or directly on the contract itself: *In either ease it is prohibited by the*<Constitution.”

The learned Chief Justice seems to have had in his mind the maxim “ *de*minimis,” &c. Upon no other ground can any exemption be jus - tiffed. “ Policy and humanity ” are dangerous guides in the discussion of a legal proposition. He who follows them far is apt to bring back the means of error and delusion. The prohibition contains no qualification, and we have no judicial authority to interpolate any. Our duty is simply to execute it.

Where the facts are undisputed it is always the duty of the Court to ^pronounce the legal result. Mrrchants’ *Bank*v. *The State Bank,*10 Wall., 604. Here there is no question of legislative discretion involved. With the constitutional prohibition, even as expounded by the late Chief Justice, before us on one hand, and on the other the state constitution of. 1868, and the laws passed to carry out its provisions, we •can not hesitate to hold that both the latter do seriously impair the •obligation of the several contracts here in question. We say, as we •said in *Gunn.*v. *Barry,*15 Wall., 622, that no one can cast his eyes upon the new exemptions thus created without being at once struck with their excessive character and hence their fatal magnitude. The claim for the retrospective efficacy of the constitution or the laws can not be supported. Their validity as to contracts subsequently m»de admits of no doubt. *Bronson*v. *Kenzie, supra.*

The history of the national constitution throws a strong light upon this subject. Between the close of the war of the revolution and the adoption of that instrument, unprecedented pecuniary distiess existed ■throughout the country.

“ The discontents and uneasiness, arising in a gieat measure from the embarrassment in which a great number of individuals were involved, continued to become more extensive.

“At length two great parties were formed in every stite, which were distinctly marked and which pursued distinct objects with systematic arrangement. 5 Marshall’s Life of Washington, 75. One party sought to maintain the inviolability of contracts, the other to impair or destroy them.

“The emission of paper money, *the delay of legal proceedings,*and the suspension of the collection of taxes, were the fri its of the rule of •the latter wherever they were completely dominant.” Ibid.

“The system called justice was in some of the states iniquity reduced to elementary principles.” **** * “In some of the states *670creditors were treated as outlaws. Bankrupts were armed with legal authority to be prosecutors, and by the shock of all confidence society was shaken to its foundations.” Eisher Ames’s Works (ed. of 1859), p. 120.

“ Evidences of acknowledged claims on the public would not command in the market more than one-fifth of their nominal value. The bonds of solvent men payable at no very distant day could not be negotiated but at a discount of thirty, forty, or fifty per cent per annum. Landed property would rarely command any price ; and sales of the most common articles for ready money could only be made at enormous and ruinous depreciation.

“State legislatures in too many instances yielded to the necessities of their constituents and passed laws by which creditors were compelled to wait for the payment of their just demands on the tender of security or to take property at a valuation, or paper money falsely purporting to be the representative of specie.” Ramsey’s History, U. S„ 77.

“The effects of these laws interfering between debtors and creditors were extensive. They destroyed public credit and confidence between man and man, injured the morals of the people, and in many instances-insured and aggravated the ruin of the unfortunate debtors, for whose temporary relief they were brought forward,” 2 Ramsey’s Hist. S. C., 429.

Besides the large issues of continental money, nearly all the states issued their own bills of credit. In many instances the amount was very large. 2 Phillips’ Hist. Amer. Paper Money, 29. The depreciation of both became enormous. Only one per cent of the “continental money” was assumed by the new government. Nothing more was over paid upon it. Act of August 4, 1790, sec. 4, 1 Stat., 140 ; 2 Phillips’ Hist. American Paper Currency, 194. It is needless to trace the history of the emissions by the states.

The treaty of peace with Great Britain declared that “ the creditors on either side shall meet with no lawful impediment to the recovery of the full amount in sterling money of all *dona -fide*debts heretofore-contracted.” The British minister complained earnestly to the American Secretary of State of violations of this guaranty. Twenty-two instances of laws in conflict with it indifferent states were specifically named. 1 Amer. State Papers, pp. 195, 196, 199, and 237. In South Carolina “laws were passed in which property of every kind was made-a legal tender inpayment of debts, although payable according to contract in gold and silver. Other laws installed the debt, so that of sums-already due only a third, and afterwards only a fifth, was secura ble in law.’’ 2 Ramsey’s Hist. S. C., Ibid. Many other states passed laws of *671a similar character. The obligation of the contract was as often invaded after judgment as before. The attacks were quite as common and effective in one way as in the other. To meet these evils in their various phases the national constitution declared that “ no state should emit bills of credit, make anything but gold and silver coin a legal tender inpayment of debts, or pass any law * * impairing the obligation of contracts.” All these provisions grew out of previous abuses. 2 Curtis’ Hist, of the Const, 366. See, also, the Federalist, Nos. 7 and 44. In the number iast mentioned Mr. Madison said that such laws were not only forbidden by the constitution, but were “contrary to the first principles of the social compact and to every principle of sound legislation.”

The treatment of the malady was severe, but the cure was complete.

“No sooner did the new government begin its auspicious course than order seemed to arise out of confusion. Commerce and industry-awoke and were cheerful at their labors, for credit and confidence-awoke with them. Everywhere was the appearance of prosperity, and the only fear was that its progress was too rapid, to consist with the purity and simplicity of ancient manners.” — Ames’ Sup., 122.

“Public credit was reanimated. The owners of property and holders of money freely parted with both, well knowing that no future law could impair the obligation of the contract. — 2 Ramsey, sup. 433.

Chief Justice Taney, in *Bronson*v. *Kenzie, sup.*218, speaking of the protection of the remedy, said : *“It is this protection which the clause-of the Constitution now in question mainly intended to secure*

The point decided in *The Dartmouth College*v. *Woodward,*4 Wheat., 518, had not, it is believed, when the Constitution was adopted, occurred to any one. There is no trace of it in the Federalist nor in any other contemporaneous publication. It was first made and judicially decided under the Constitution in that case. Its novelty was admitted by Chief Justice Marshall, but it was met and conclusively answered in his opinion.

We think the views we have expressed carry out the intent of contracts and the intent of the Constitution. The obligation of the former is placed under the safeguard of the latter. No State can invade it and Congress is incompetent to authorize such invasion. Its position is impregnable, and will be so while the organic law of the nation remains as it is. The trust touching the subject with which this-Court is charged is one of magnitude and delicacy. We must always-be careful to see that there is neither nonfeasance nor misfeasance on our part.

The importance-of the point involved in this controversy induces us-to re-state succinctly the conclusions at which wé have arrived and. which will be the ground of our judgment.

*672The remedy subsisting in. a state when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is, therefore, void.

The judgment of the Suprome Court of North Carolina is reversed, and the cause will be remanded with directions to proceed in conformity to this opinion.