The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-07-23
: ar,sar l4Yrs,rss caroline LIN fcrestsnS ase
c,ssa., under che Homestead Law.
Sorrcsaondeacc of tl,o Richmond Dispatch.
BOWLING GREEN, CAhoLlNE,l

1900, ,y.,,,,., .nrpatne-In fcrestsuS 1se.
$3.50. ,,,,car tI,e Homestead Law.
~"a..s,.,ordence OF Tic Richmond Dispatch.
/ RowLINa GREEN, GARDINER
| July q, 1870,
Tho following case, under The homestead
las, hos arisen in our coltiity court, and
hcen decided by Judge w. e. Hudgins:
Tn 1851, w. r. Mason, OF fredericksburg
sued and obtained Judgment against &.
E. Allen. In August, 1869. Allen sued
and obtained n Judgment against ". ..
Airport, and on the 18TH daT CT the pre-
sent month issued his execution against
Airport, who got an injunction to restrain
the sale of goods levied upcE. On the lbtn,
Airport purchased Masol's Judgment. or \
part thereof. and tended The same 10 tue
sheriff in Day1nent OF Aliens judgment, and
on the 18th, two days AFTER, Allen flled a
schedule, claiming his debt against Airport
| as n part of his homestead; and Judge Hud-
pin decided that Airport having purchased
Mason's Judgment before Allen had taken
any steps to set aside his homestead. was u
purchaser without notice, and had acquired
an equitable offset against Allen Whlf'i
should be allowed. The Judges opinion
below will more fully explain the case anu
the points decided.
The question argued here Is: Is Airport
entitled to credit for the amount assigned
him by Mason and it is contended that, rs
Mason could not enforce execution against
Allen. the assignee (Allport) cannot. 1t is
clear that if Mason had attempted TO en-
force his execution, Allen could by conform
inc to the provisions OF the homestead act
have defeated him; and to do this, under
the provisions of the 10th section, the
debtor must file an inventory not only OF
the property he intends to claim as ms
homestead, but of all his property, real
and personal, and to apply to three COM
missiOners rreeholderS) to value the same.
| understand the parties i'll this case TO nave
waived such 4 proceeding, ana L snail dc-
eide the case rs if thaC was done, thougn L
am clearly Of opinion that until the require
ments of the act at Assembly in This re-
spcct arc complied with no debtor has any
rights under the homestead law.
[ have already sail ii.;,t if Allen had conf
nlicd with this section Of the statute, and
his schedule showed that his property, III
Gliding chooses in action. amounted 10 less
than two thousand dollars, lie would he
come entitled to have it set apart. Now II
Alport is in no better situation than Ma
son. Allen will be entitled to claim his
homestead and we must examine INTO This
question:
The Constitution, ait"r providing Tor the
homestead, further pr"|tdrS (sectlnn D, ar-
ticle ~ that the General Assembly shaii,
at the present session, prescribe IN WilaI
manner and OH what Conditions the said
householder OF head OF Il family shall there
after set apart and hold for himself and
family Homestead; and in pursuance OF
this provision the homestead act (sccfion n
DrOyitlcs that "tc be entitled to the full
benefit of a homestead, exempt from levy,
Ec.. said householder or head OF family
shall declare by decd duly recorded, &c.,
his intention to claim such homestead, with
a dcscription of the property 50 claimcd,"
&c. 1t is clear to my mind that, until a
party shall have taken steps under this sec
ton. he has not vested his property in the
homestead in himself and family; but sec
tons 1G to II provide means for HIM 10 ac-
Quirc his homestead after execution against
a Judgment creditor proceeding to enforce
execution. This Allen claims to have done
on the 18th day Of July, 1870. On the 18th
of July he issued his execution against Az,
port, and put it in the hands Of the sheriff
The same day. On the 18th, Mason issued
his execution against Allen. and put it in
the hands of the sheriff the same day. On
the 18th, Mason assigned, for value, s215 of
his judgment to Moncure, who, for value,
on the 10th assigned it to Airport
so that Airport acquired claim
against Allen on the 10th, notice of
which he Immediately gave the She
riff, and filed his assignment with the
papers in the clerks Office, and it was only
two days after receiving notice of Allport's
claim against him that Allen takes any
steps towards settling aside his homestead.
How was Airport to know TINT Allen need
ed or intended to claim Il homestead till he
took steps to do so? II Allen had acted
under the fourth section OF the homestead
law before Allport'S purchase from Mason,
he (AlIport) would not have been a pur-
chaser without notice but without such
notice he has acquired rights against Allen,
and it would work injustice and hardship
ON him to make him pay to Allen when he
is q creditor of Allen himself, having ac-
uuired his rights before he had any notice
of Aliens right to homestead, or his ill.,
tention to claim it. Ills claim is, therefore,
a good ono, md tho Injunction awarded to
Airport is perpetuatcd.
The case excited considerable interest, rs
this is the first of the kind that has come up
under the homestead act in either OF our
courts. and was ably argued by Messrs.
Chandler a. Chandler for Alien. and x. c.
Moncure, Commonwealth's attorney, for
Airport, and the decision given by one who
is undoubtedly "learned in the law"