The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-02-13
THE HO1LESTEADi Law.
Opinion Of Judge Carpenter Deciding
1T to be Unconstitutional.

Opinion Of Judge Carpenter Deciding
it to be Unconstitutional.
The following is The full text of the recent
opinion Of the Hon. r. B. Carpenter, Judge Of
the First Circuit, IN which he decides the
Homestead law Of this State to be unconstitu-
tional:
.Joseph purcsu. for the use of C. B. Nortarop. Us
Dr. James e. Whatsy
IN the 27th dav of May, 1887. the plaintiff Obtained
iudoment by confession against the defendant for
sS3CS TO- VITA interest from the day Of its rendition
ut twelve per cent per annum, and costs OF suit. On
writ Of was osnta Sen IN ps
tr1cu On the 9Th day of J.ne, 18G! Purcell assign
ed the said judgment to c. b. Nortnrop lot Vaiua-
bile consideration After delay, arising from causes
not NECESSARY TO be here stated, the sheriff, under
and by virtue of said writ, LEVIED upon the anta-
t1on Of the defendant containing about four hun.
dred acres of land, aud advertised the same 1cr eae'
The defendant gave notice to The ahe ill., IN writing,
that be claimed Homestead under the a. OF the
General Assembly passed the 9th day OF September.
ls68. The case is now before this court, upon the
motion of the plaintiff TO order tue sheriff to pro-
coed to sell the property ieNsa ION Wltnou, ieIer'
Section 90 articls !. Constitution Of State OF
South Carolina) provided that "a reasonable amount
of property as homestead ehlll be e1eu pied from
seizure or sale for the payment OF any debts or ia-
bities except for the p,yment of such Obligations
as ara provided for in this constitution.
Section 80. Article q provides that "ihe family
homestead OF the head of each family residing IN
this State such homestead consisting Oh dwelnpg
house outbuidngs and lands appu tenant, not to
exceed the value OF THOUSAND dollars and yearly
product thereof shall be exempt from attach"ent
levy or sale, on any mesne OF maj process l'tueo
fIom auy court" By the same secnon, IL IS MADE
.Itho duty of the General Assembly to enforce tue
PROVISIONS Of this section by suitable legislation
In the net OF the General Assembly, befre refer
tlA,-
red 10, Section provides that "wnenever inc rea'
estate of any head of family, residing in this State
shall be levied upon by virtue OF any mesne OF hnal
process, issueo from any court upon any Judgment
obtained upon any right of action, whether arlsin9
previous O, subsequent to The ratihcatlon OF tue
Constitution of the sa:e of -outh Carolina, # the
sa,e be the family homestead OF such person, the
ehcrff or other obcer executing said process, shall
cause homestead, such Us the SAD person may
select not to exceed the value Of $1,000 to be st IN
to said person."
The single question In this case is, the provi-
aons of the constitution and the act OF inc General
Assembly, above cited. within the provisions OF the
clause of tho tenth section OF the first hcle of the
Constitution of the United states. which prohibits
state from passing law impairn2 the obligation of
contracts?
rhe difficulty in determining this question lies in
asccrt iuine where the line OF dem Ircation exists be-
tween the acts of the Legislature, Which affect the
remedy ouy, and those which, un Ter toe preteLce
of affecting the remedy, do impair the obllgaaon OF
the contract It has never oeea douhted mar tne
laTs in regard 10 remedies as may seem most hu.
name and wise, where the rh lracter and amount OF
the exemption do not substantially interfere with
the contract itself. The only qneston IS, does the
legislative act overstep that bound, and under the
guise Legislation upon the remedy attack and in
pair the obligation Itself?
Ia considering the case before me, two ques.
tions present thenselve':
First. What Is meant by the term "obllGaion OF
contr.ct, used in the constitution; and second-
ly wnat constitutes an impairment OF that ooitge-
tion?
Tho highest legal autnoriti u have answered both
questions Aconract is an agreement to do or not
10 do particular tbins specified th' rein, and its OBJ
isatoa is that which binds the promisor to per.
form the agreement It's not tn, promise OF The
mere duty, but is the romedy which the law gives
against the defsu ting party.
This provision OF t. constitution was inserted to
compel the several states to maintain the integrity
and secure the faithful execution Of contracts
throughout the Union.
The fr,mers OF that instrument had before them
in the legislation of tbs staio- anterior to the ad"p
ton of the con nstiuiion. ample exempihcatons OF
the evils Incident to the impairment OF these ooE-
cations Under the pressure nj the struggle for in
dependence, many Of the States had passed laws
prejudiciai to private rights. Bv some OF item the
payment uf debts was suspended. In others, deots
authorized to be paid by instalnents IN VIOLA
tion of the contracts Property real and personal,
might be rendered by the debtor In paymeut OF LIS
Obligation, and the creditor WIS compelled to take
such property ut an e1orbitnnt anpralsement.
system of fraud which Destroyed nll public conn.
deuce and crippled oil private industrial enterprise
ksf as nm advised however, even tnose sta'es
ncv.r had the emerltv to utterly abrogats the con-
tract although they did Impair 1T by annuilipg the
remedy.
Now, the right and the remedy arc 80 Intimately
connected, that the destruction OF the former Is
the impairment Of the latter; tue constitutional pro-
vision was designed 10 protect boih. Ia the Ian
guage OF the supreme Court of tae United States:
It would Ill become this court under these circum-
stances to depart from the PLAIN meaning of the
words used, aud sanction distinction between the
right end remedy, which would render this pro-
vision illusory and nu yatory -mere words or form
aior. ling no protection and producing no practical
result"
iudgmeht q lien WAS vested in the plaintiff where
by he was to receive from the reD estate of the de-
fendant the amount OF sud judgment This un-
oueshonably WAS lie sal right. At the time the
Judgment was rendered, and the lien became vested
there was no law ID south Carolina which exempted
any portion Of the DEFENDANTS land from sale under
that execution. Could the Constitutional ,onven.
uon or the General Assembly enacta l'w, after the
rendition of this Judgment, which divested the
nlain,iff of his right iu this land without mparnS
the obligation of the contractr
"'ro deny any remedy under contract, or by
burdening the rem -dv with new conditions aud re-
strictiups to make II rse css or hardly worth purs1
ing Is equally vic lado1 OF tue constitution" IL
Kent Com. 4l9.) ,,,,
aud practically w. au instrument by which, rights OF
properly arc created, and on which they repose.
Obligations and remedy are siricIy c2nyert'oie
terms. luke awly tho whole remedy and 1t IL ad-
nied the Coz tract Is gone Aid II seems 10 me me
only logical rule to hold that any legislation which
ma;cria.y Ailniulshes The remedy given by the law
to the cdi or ut the lime his coltrect is made, just
so FIR imnairs the obligation OF tue coa'lact."
Sejgwick, Stat and Common Law, TO-
Judpe Parsnps in his work upon Contracts says
"rhat IN exemption of properly from attachment tby
which Is meant levy, o! subjecloh OF IL 10 atay
law OF appraisement law, impaiIs the uDuSauon oI
co ntracrn He aids: "Such srltuto can DE enforced
only rs to contracts made subsequently 10 Inc law.
,Untier these cases il has 1T lenglh become de-
fnitely settled that state law which lppalrs the
oblirat ms of a coutracs whether that contract be
found IL the express terms anu CONDITIONS Oh me
written cont act between the par ies or Is engraied
upon the contract Dy The Of the land. as it exist
ed ut the time the contra was made is Within this
proniaitiug clause OF the Federal Constitution as
We also as oil laws aimed or nonlnaiiy uirccteo 10
the remedy aheu they effect the remedy as to i'm.
pair the right ,tse" Smith's CON. Gil stat. and
Const Con-, $685.
Judge Story, in his great work on the constitution,
remarks: But generally speaking, when We speak
of the obligation of contract We include IN tne idea
some known means acknowledged lJ the uiunicipai
law 10 enforce it. Where all such mems are denied,
the obgltion OF ract is understood 10 oc I'M.
paired though 1t may not be completely aunl LATED
An net OF the Legislature OF Vermont releasing the
body of debtor rom imp isoninenf, and directing
that the bomd which he had given 10 the sneriH LOT
the prison liberties, ard which the sacf1n mao as-
ass eneI TO tue creditor. should 20 aistergea, WIS
he'd by the Supreme Court oi that STATE 10 Dc Vod.
Il Chit Rep., 26T)
statutes OF limi a,ions which donot allow req
sonahle lila, after theig pas5a5c .or the mmencc-
meut Of salts On existing causes OF lcton are un-
constitutional. ica! vs. dssger Mass: 43o; Fro,
hoo, .ts011