Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-07-30
From the Raleigh Sentinel
rONSTITUTiONiLETY OF TtlF in wv
STEAD ACT,
Opinion of the Supreme Court iu the Case
of I'm VS.. kesier. from Rowan. De-
iiveTed by Judge R.ade.

| whether the provision in our State tunatl-
tution cXcmpting certain property from: cx-
ecutiun sale impairs the obligation of pre-
existing contracts
The provision in the Constitution ia as
follows:
Art. X. Sec. L. The personal prope, ty
of any resident of this State to the value
of five hundred dollars. to be selected by
such resident shall be and j. hereby ey-
empted from sale under execution Or other
| final process of any Court issued for the
collection of any debt.
| Sec. 2. Every homestead and the dwell
ing and buildings used Herewith, not eN-
cceding in valuo ono thousand dollars, to
be selected by the owner thereof, &c, shall
be also exempted.
There has been suitable legislation to
carry out said provision.
We concede that if this exemption i'm
pairs tho obligation of contracts, either
exprcssedly or by implication, it IS against
| the Constitution of the United States and
| therefore void.
The obligation Of a contract is tho duty
| of it,, performance according to the terms
| thereof. Any act which alters its terms,
| Or enables either party, without the con-
sent of tho other TO alter or evadc its terms,
impairs its obligation, ana is, therefore,
void. promises 10 pay to D 800 on a
given day. An act requiring him to pay n
day earlier, allowing him to pay q day
| later would alter the terms as to time and
| impair the contract. So an net requiring
him to pay $slO1. allowing him to discharge
the debt with 500 would alter the terms as
| to the amount, &c.
We conccde, also, that il contract must
be understood to be made with refer
cnco to existing laws for its enforcement
| pl 7 hn lf fn
are laws in existence for its enforcement,
it is the same as if tho State were to say
| to the parties, there are Low and 50 there
| shall continue to be, laws to enable each
| party to onfOrcG the contract. And after
| such aSSnrnnce, if the State abolish, or III
jurionsIy change the remedy, it would be
| viOlntiye of the Constitution Of the United
States and therefore void.
The contract in this case was made be-
| fore the constitutional exemption, and
| therefore, when the debtor agreed to I,ay
the creditor q certain sum, we are to en-
qnirc what was the remedy for the enforce
| mrnt OF that contract
| Ii was to sue him. get Juu gment, lsauc
Fl. td, levy upon and sell such property
as he might have subject to execution. -
Observe, not levy upon and sell any par
ticular property, Or all he might have but
|
What is his remedy now under the Ex-
emption Law? 1t is, to sue him, get
Judgment, issue execution, levy upon and
| sell such property us he has subject to exc
| clItiou. What is the difference in the rem
| edy then and now There is not only no
injurious alteration, but there is no altcra-
alton at all, so far as the proceedings are
| col corned.
1t was formerly the Case that when "a
| creditor got his Judgment nc had two reE4-
cdies ; one the levy upon and sale Of prop
erty, and the other the imprisonment of
the debtor. The Legislature abolished
the remedy by imprisonment, which often
brought the money when nothing else
would. leaving only the remedy against
the property. And then it was contended
that the abolishment of tho remedy of i'm
prisoDment impaired the contract. But
the Courts in repeated cases, decided other
wise. The true import OF the law being,
not that the parties should have any par
ticnlar or specific remedy, but q sub
stantiai and cOryenient ono. In what
way does the Constitutional exemption
| alter or impair the contract which these
parties made? How is the remedy changed?
| What was the law at the time of tho con-
| tract, and which became part OF it? Was
it that all or any portion of the property,
which the debtor had at the time Of the
| contract should bo liable to execution sale?
| Was that tho creditors security for his
debt Certainly not. Tho contract was
personal and lien upon nothing. Else.
how would it be if the debtor had no prop
erty or, if ne had any, how would it be
if he should sell it Or, how would it be
with property acquired after the contract {?
Or how, if q subsequent and moro vigilant
creditor should get ahead, and take the
! whole in execution? Or, in case of the
debtors death, how would the widow Eget
dover, or years provision Or, how
would funeral expenses have the prefer
ence over all other debts Those consid-
erations make it plain that no such ele
ment onters into the contract, as that any
particular property which the debtor has
at the time of the contract, or which he
may subsequently acquire, shall be liable
to execution sale Or that any particular
remedy is guaranteed. The guaranty is
that the contract shall never be altered by
law and that there shall be remedy to
enforce it, And the contract is made not
only with reference to the remedy exist
ing, but also to such reasonable changes
as the interest of society require, and the
State may think proper to make.
Against this view it is contenaed that
there are express decisions to the contrary.
If there be snch by tho Courts of our Sis
ter States, they are entitled to respectful.
and il by the Supreme Court of the Uni
ted States or by our OWN Court. they arc
entitled to the highest consideration.
The cases most pressed upon our atten-
ton in favor of the creditor are Bronson
u.s. Kinzie, Howard 81, and McCracken
rs Haywood, Howard COB, both decided
by the Supreme Court of tho United States.
Bronsol os. Kinzie, where it was provided
in q mortgage deed, that if the money Sc
cured was not paid at a given time the
mortgage might enter and sell. And the
Legislature of Illinois passed an act to the
effect that the mortgage should not enter
and sell as the contract said he might, but
that he might enter and sell upon certain
conditions not specified in the contract
This was clearly an alteration of tho con
tract and impaired its obligation. IL
changed the contract Of lie parties. But how
is the contract changed in our case Not
at all It stands word for word, as the
parties made it. And so. too, the remedy,
as we have seen, stands word for word.
The other case, McOracken os. Haywood,
arose under an act of the Legislature
onoxu.J ho oonfraot fn ctao1 an1