Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-07-30
The Homestead,
Dissenting opinion Of Chief Justice Pen.
son upon the c"ns'it"tionaIIty OF N.
Homestead Exemption.


facto laws is confined to crim;nn1p oSt
fences. but the broad principle of ;ns,; oi
on which it rests extends as we'll t issue
rights, and it is settled rule of eon1trN Yu
ton that retroactive effect is never ~ I
given to law, unless the words used " ~ He
NIT OF no other meaning, aud show havon1
question that past transactions are VIII
its operation. General and vague Viii
have never been allowed to have thot oS
feet" Broom's legal maxims-4l ei'
In our case the words in the Constit,
ton are shall be exempt from sale nn5a.
execution ''for any debt" Very comnr er
hensive, but at the same time very in5ae
mite. The statutes carrying out this orJ;
nance adopt the same words without or
PLANTATION giving to them the meonino a.
"any debt" hereafter contracted there &c VI VI
injustice, for people will know who is to Lo
trusted: giving to them the meaninc ~
any debt, as we'll debts heretofore as debts
hereafter contracted, there is gross inins
tice, and violation not only of the ordi
nary notions of honesty, but of fye1
principle of the common law reafirmed Inv
statute law, Ii Elizabeth, "All gifts and
voluntary conveyances of his property bV
debtor are void as against existing credi
tors, on the ground of frdWd. I hesitate
to give to these indefinite words con
struction which imputes to the law makers
fraud in this; it makes gift of voluntary
conveyance to the debtor himself, in fraud
OF existing creditors, of property, on the
which he received credit, and OF which no
cannot by law make q voluntary convoy
ance to another. Courts are to be gov
erned not by what the craftsman OF q law
Is supposed to have meant, but by what
the words used mean according to the set
tied rules of construction. This maxim
should especially be adhered to, when the
law is submitted to vote Of the people.
for it is not decent to suppose that indef-
mite words were used that some might vote
for it giving one meaning and others an
other.
II. ''No State shall pass any law i'm
pairing the obligation of contracts" These
words are not confined to
prohibition against altering the terms of a
contract, but, also forbid impairing its
obligation. What is the obligation of a
contract ? The means of compelling per.
Torrance, according to the laws in force.
at the time the contract is made 10y these
laws the parties agree to abide by these
laws their rights are fixed. This is the OBJ
legation which must not be impaired by
State, whether acting III Convention or in
General Assembly.
We are told ''Thcre are now and So
there will continue to be, laws to enable
each party to enforce the contract, and
after such assurance, if the State abolish
or seriously change the remedy, it would
be in violation of the Constitution of the
United States and therefore void"
In this 1 fully concur, and the question
is, not confusing the subject with multi
tude of cases Oh with many words does
or does not the Homestead exemption" of
$500, personal property and 81 900 value
of land, injuriously change the remedy and
alter the laws in force ut the time the con
tract was made In Other words, is not
the obligation of this contract impaired by
the Homestead exemption ? 1t is set out
in the record, that besides the property
exempted, this debtor has nothing. SO
the contract cannot be enforced, and It's
obligation is destroyed, not simply I'M
paired.
It is said, "thc remedy is not at all
changed, for the creditor can take judg.
ment and issue a writ of feri f1CidS, Just
as he could have done when the contract
was made" All this is very true, and it
is equally true, that in nine cases of ten
the Sheriff will return on the teri taciaS
nothing found exempt property exempted
by homestead law" This is the shadow,
but not the substance The creditor
trusted to the property which the debtor
had, at the time of the contract, as tho
means of enforcing it, and to the law by
which voluntary conveyance is declared
fraudulent and void-that was the obliga-
ion, the thing that binds--and yet it is
held, as think, under the unconscious
bias of pressing circumstances, that q law
which bestows this property on the debtor
TO the injury Of existing creditors does not
impair the obligation Oh contracts
1t was urged on the argument BY the
common law, wearing apparel, arms for
muster, tools Of tradesman and a bed
and furniture are exempted; land these ar.
ticles were not looked to and were not III
Guided in the obligation,) then, by Statute,
certain other articles, l. e., Bible, hymn
book, and school books, and finally
horse, not to exceed in all the value of
5000, were exempted. Now, because cred
tors did not choose to make point about
these small matters, that is relied on as
fixing the power Of the General Assembly
TO make exemptions against existing debts,
and the power being thus established, the
extent OF its exercise is q matter of legisla-
tive discretion. 8" Give IN inch and take
III Gil. I1ESG1 uSSuLnC Guc power W 0AGnP1
a Bible, hymn book and school books,
then horse may be added, then $500
worth of property, then $500, then $1,000
land, then $4,000, and then ex-
empt everything, for there is no limit, save
Legislative discretion. Indeed, the Statue
lnder consideration, l believe, exempts
owned by debtors in nine cases
,ut Of ten.
In reply to the argument drawn from
sanction, one fact counter
balances the whole. In 1922, the Lcgisla
ure deemed it wise to modify the law OF
for debt as an obligation Of
contracts After full discussion the act
provides "Any person arrested under a
opidS al SdtiSfdcienCluna for any debt con
racted after the LIST day of May next, may
i've bond to appear, &C., )" and shall not be
to jail, as before.
[ am aware that in serveral OF the State
have been made sustaining home
tead laws. These cases all rest on the
allacy of assuming the power to make eX.
,mptions, to some extent, and then on the
dea of Legislative discretion, the amount
s swelled up to thousands and it is JUST
led on the ground of keeping pace with
he progress of the age" progress III tins
fear, of dishonesty and fraud
choose to rely on the cases i'll our own
court. Jones VS.. Crittenden, l Car, Law
ep. 395. Barnes VS.. Barnes Jones "'"'