Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1873-04-18
THE HOMESTEAD LAW...ITS UN.
CONSTRUCTION AS TO
Old DEBTS

THE HOMESTEAD LAW..-ITS UN.
CONSTITUTIONAL AS To-
Old DEBTS.
We have inadvertently omitted to
make any comment upon the very i'm
portaEt decision recently made by the
Supreme Court of the United States,
declaring that Homestead Laws arc
unconstitutional, in so far as they re-
late to debts contracted prior to the
passage of such laws. We presume
there was scarcely lawyer of respecta
BILE standing in his profession, in the
State, who believed that the case of
Hill VS.. kestler, was correctly decided
by our State Court, or that it would
be sustained by the Supreme Court of
the United States. That decision was,
doubtless, Influenced more by politi-
cal considerations than by legal prin-
ciples. 1t has, at last, been overturned,
and our people who have been resting
in fancied security under if, now sud
denly find themselves without protec-
ton, save that which may be furnished
by the statutes of limitations and
Bankruptcy.
1t would, doubtless, have been far
better had our Courts met the ques-
ton boldly and honestly st the outset.
1t is, we believe, a matter of universal
experience that the longer the payment
! of a debt is deferred, the more diff
cult it becomes.
The following article which we take
! from the Raleigh N-c,rs, contains a
clear statement of the whole question
| In 1868, the State OF Georgia enacted
t law increasing the Homestead ex-
| emptions, and the Supreme Court of
that State, held that such enlarged ex-
emptiors were good against all debts
contracted prior to 1868.
The Sheriff refused to levy on GER
| tain property of a debtor, against
whom judgment had been obtained on
an old debt, for the reason that such
property was exempt from execution
! under the Homestead law. The judg-
ment creditor asked for writ of man
damus against the Sheriff, to compel
| him to make the levy. This was re-
fused by the Judge, and the case was
taken to the Supreme Court of the
United States. Associate Justice
Swayne, of that tribunal, delivered
| the opinion of the Court IL few days
ago, reversing the decision of the
Georgia Courts, holding that Home
stead exemptions cannot apply to pre-
existing Qebts-being violation of
that CLAUSE Of tue Constitution of the
United States which prohibits any
State from passing Il law that lmpairs
the obligation Of contracts.
This decision i'll effect sllstains Chief
Justice Pearson, of our Supreme
Court, and Judge Brooks, Of the
United States District Court, both of
whom have decided i'll cases brought
before them that the Homestead clause
i'll CHAPTER tenth Of the Constitution of
North Car.liaa, IL 50 far as it cx-
empted property from. execution
against debts contracted previous to
the adoption of the Constitution, is
unconstitutiL nal and void
In the case of Hill against kcstler,
63 North Carolina Reports, Associate
Justice Reade delivered the opinion of
the Supreme Conrt, HAT the Home
stead law of this State WAS valid
against prc-existing debts, as well as
those contracted after the law was
passed, and this opinion was concurred
in by all the Supreme Court Judges
except Pearson, who filed dissenting
opinion.
The language Oh ort ia- is: 1.-The
personal property OF any resident of
this State to the value of five hundred |
dollars, to be selected by such resi-
dent, shall be, and ishereby, exempted
from sale under execution or other
final process of any Court, issued for
the collection of any debt and
every Homestead, and the dwelling
and buildings used Herewith, not ex-
ceeding in value one thousand dollars,
to be selected by the owner thereof,
&C., shall also be exempted"
IL delivering the opinion of the Su-
preme Court, Judge Reade said that
these exemptions were good against all
debts-old as well as new, and that
such exemptions did not impair the
were tat il, oontravention of the Con-
stitution IF tbs Aait3d States. He
argued that the lf5H wfG sapeiioEe.3 ~
the Convention that frarre,t the Gdif-
stitution, by the Legislature of the
State. by the people themselves on a
direct voto when they adopted the
Constitution, ana ~ the Congress of
the United States which app owed the
Constitution. - -. I:-:' L
In his dissenting opinicu, Chief
Justice Pearson takes the pc sition that
the language fanny debt" used in the
may be hereafter contradictions re-.
fo no To,
law, according to settled rule of con-
no other meaning-and that general
and vague words have never been al
lowed to have that effect, If the
words were intended to apply 10 old
debts, it would be violation Of the
gifts and voluntary conveyances of his
property by a debtor are void as ,
against existing creditors, on the
ground OF fraud. And # the law ,,
makers intended to make gift or con- .
veyance to the debtor himself of prop. .
erty on the faith of which he received .
,re4it it would be fraud towards ex- ).
sting crealtofs, And therefore Judge 6
PearsoT thinks sutch construs tiou ~
he Language of tie ~eonstitrltion In q
proper. - 5''['' - il
Again, no State can pass any law iul- g
,aifiag the obligations Of contracts. +.
Judge Peafssa tlsss4as Gpe Of the obi S,
.ations of contract conaistS II, The j,
aeans of compelling its performance. O,
ccording to the laws i'll force at the tt
ime the contract is made-that $500 c,
f personal exemptions, and the 81 900 v
alue of land exempted under the +
constitution, if applied to old debts,
ljurisusly change the remedy and al
II the laws in force at the time the ia
,ntract was made. In other words I'll