Abbeville press. [volume] (Abbeville, S.C.) 1860-1869, 1869-02-19
The Homestead Law.

! Judge Carpenter Of the Charleston
Circuit has decided that the Home
stead Law Of tie State, SO far as it
applies to liens obtained before the
! passage OF. the Law, Is unconstitutional
and invalid. The Judge decided only
the case before him which was that OF
aJudgment obtained in 1867 before tho
passage Of tho Homestead Law, but
his reasoning applies as we'll in PROV
ing the Homestead Las to ho void as
to all contracts which existed prior to
its passage. The authorities cited are
clearand conclusive, and the opinion
! is written with great ability.
The new Constitution Of tho State
adopted in 1868, declared that there
shall be homestead exempted from
seizure or sale for the payment OF any
ccbts or liabilities. The Legislature,
in the same year, passed an Act ex-
empting ''homestend TOR the head of
each family, to the value Of ono thou
sand dollars, from'levy or sale, upon
any judgment, whether obtained pr;or
Or subsequent to the ratification Of the
new Constitution. Tho reasoning
of Judge Carpenter establishes the
principle that no Act of a State Com
vcntion or State Legislature, can eff
feet contracts; whether secured by
Judgment, mortgage or otherwise,
which were created prior to the law.
They equally vielate the provisions Of
Tho clause Of the first Artice of the
Constitution, which prohibits State
from passing law impairing the OBJ,
legation Of contracts. The great diff
Guilty has been to determine how far
the Legislature may modify the rene
dy without Impairing the obligation.
The right and remedy are so init.
nately associated THAT the destruction
of the latter is the impairment of the
former. The following citations from
elementary treats ON this point,
the Judge sustains BY numerous au-
thorities, embracing the decisions Of
the highest tribunals of the country:
'''Fo deny any remedy under a. con-
tract, or BY burdehing the rethedy
with new conditions and restrictions
to make it useless, or hardly worth
pursuing, is equally in violation of the
Constitution."-1 Kent, Com. 41O.)
"It seems to mo that, looking at a
contract legally and practically, as an
instruzaent by which rights of prop
erty are created, and on which they
repose, obligations and remedy are
strictly convertible terms Take
away the whole remedy. and it is ad-
mitted the contract is gone. And 1t
seems to me the only logical rule to
hold, that any legislation which ma
teyially diminishes the remedy given
by the law to the creditor at the time
his contract is made, just so far inn
pairs the obligation of the contrast."-
(Sedgwick, Statute and Common
Law, 652.J -, -.
| Judge Parsons in his work upon
contracts, says: "That an exemption
of property from attachment (by
which it is meant levy, or a subjec-
ton of to stay law or appraisemsnt
law, impairs. tho obligation of a con-
tract" He adds: "Sach a statue can
bo enforced only as to contracts mado
subsequently, to the law - ''',;'
| "Under these cases it has at length
become definitely settled that a State
law which impairs tho Obligations Of a
contract, whether, that. contract be
found in the express terms and condi.
tions Of the written contract between
the parties. Or is engrafted upon POI the
contract By the law, Of, the land, as il
existed ct the time. the CONTRACT was
made, is within this prohibiting clause
Of .ths, s,s Federal canstit TUITION as we'll
also is as all lave aimed or. nominally
directed sto the penedy. when they ess, 90
,f affect the, The, remedy, rem as 70 impair The
right itself. smitk Gomd,1 Z On stat.
and Const. Ceny 3ss.l w. 6, s ~, .s's -. s
Judge stesyrip. to sgssstswork on ,,p
|shs ,lGanssi Il tremaskss sssBat,