The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1877-10-19
FLOR The Dispatch.l So
Waiver or the HOmastead.

plated the case OF q WalveriDeIoI6tneu so'oi
or contractor had asserted his right 70 a I
exemption. But there IS another Jas pect ~
which the question may be yleWeo' as ios-'
lows: -, ia
siguated aud claimed his exeni,liohh ny =
deed du,y recorded, does his family tneIens
acn,,;re s,ch an interest in the property tnaI
It cannot be Invested by asuDseqaeh' ""''''
on the par. OF the householder 3. ono
This Question, il must be confessed, u oie
=, considerable nicely and difficulty, Mneh
NO undertake to reconcile the legal prino .
,,,es involved in it with the interests OF cfeu-
;tors who. under these circumstances, nave
contracted on the faith OF valid waiver.
Pursuing for the present the analogy
bcre,ofore observed, recur to the language
NJ Judge Story "The wife's equity Tor
settlement is generally understood 10 oe
strictly personal to her, and it does not eA,
tend to her issue, unless 1t has 6ee's dSSeIteo
and perfected in her lifetime" ANA IN
note to section LAB he refers to Clancy on
married woman, b. 5, CHI. 3, GA, "nere tnc
author is OF opinion "ttat the VINE, ailer
nronnsals for settlement made by the hus-
band under decretal order, cannot ,1diue q
settlement so as to taIce a,1ay the rights OF
her children, though she may before" See
This conclusion is supposed to rest upon
the general doctrine OF vested rights, ana
might seem to settle the point at issue. put
the proposition here is to show IL possible
that the family Of the householder 40 not
take such an interest in the homestead pro-
perty as to render q subsequent waiver IN
efectuaI. Can this proposition be estaD-
lisbed2 | submit the following suggestions
for what they arc WORTH
Section 3, art. II of the Constitution, pro-
yides that "the General Assembly Shall. at
its first session under this Constitution, pre-
scribe in what manner and on achGt Conda-
tions the said household or head OF family
shall thereafter set apart and hold for him.
self and family homestead out OF any pro-
perty hereby exempted" DC.
The holding, even for the benefit OIL the
family, appears, therefore, to he not aDSo-
Lutte and perpetual, but conditional and by
easy implication, temporary; and this con-
clusion is corroborated by the third section,
which gives the right Of alternating the pro-
perty by virtue OF any deed OF trust or other
security thereon Conditions" being a
technical word, must be construed accord
ing to its LEGAL acceptation. Now, condi-
ton is a qualification annexed to any estate
whereby it is to arise, or be enlarged, or be
defeated. LON. Dig, 33l.
The condition on which the homestead
estate is to arise is the act OF selecting the
exempt property by the householder in the
manner prescribed by law. But this condi-
ton is substantially contained in the first
section which creates the estate, or rather
gives the right 10 claim it. 1t seems to fol-
low, therefore, that when the fifth section
speaks OF the conditions on which the home
stead shall be held it must refer to condi-
tons which are to defeat or determine that
identical estate (Which may be substituted
by property OF another kind-as, for exam
pie, by money borrowed on deed OF trust
or mortgage upon the homestead estate un-
der the third section).] In fact, the Legis-
lature was not authorized to prescribe con-
ditions on which the estate should arise or
be enlarged, but simply those on which it
should be held; and these must be condi-
tions to defeat it, because we can conceive
OF no others in the premises. In pllrsu-
ance of this constitutional authority the
Legislature have prescribed 4 condition
negative, it is true, but nevertheless con-
dition-on which the property may be held,
and that Is, provided the householder does
not acaive the benefit. II he does the estate
is Invested out OF him. protanto. and if so,
the creditor takes. valid and substantial
security for his debt.
Such is the conclusion. But it may be
objected that the General Assembly is for
hidden so to construe the fifth section as to
defeat or impair the benefits Intended to be
conferred by the eleventh article, and that
therefore a condition to defeat the home
stead is unconstitutional. 1t may be an
swered that one of the benefits conferred
by that article is the right to mortgage or
pledge the homestead, which might result
in its complete alienation. Consequently
it would seem that the alienabildy OF the
property, or the ,defeGSibitity OF the estate,
is one OF the benefits intended to be Sc
cured by that article; and if so, it is pro-
tected by the rule OF construction laid down
in the fifth section, Besides, it might be
argued that, defeating the estate, and de-
feating or impairing the benefits resulting
from its ownership, are two very different
things. To defeat or determine the estate
might in numerous cases be the most effec-
tual method Of enjoying the benefits In
tended to be conferred. upon the house
holder and his family, and the obtaining OF
credit or goods by waiver might be in
strict accordance with the bene6cent spirit
and object of the provision. Another
objection to the foregoing conclusion
might be founded on the seventh section OF
chapter 1873 Of the Code, which provides
that ga homestead so set apart = shall
not be mortgaged, inctmbered, or allened
by the owner, if married man, except by
the Joint deed of himself and wife, eXecu-
ted and acknowledged after the manner OF
conyeyances Of lands OF a married woman, -
and hence it might be contended that a
waiver by the husband alone could not OPP
crate as lien or charge upon the home
stead property which had been previously
| set apart by deed duly recorded.
Apparently this provision comes practi-
cally in direct conflict with the third sec
tion of the act. which declares that when
there is a waiver "thc property, Whethe1
| previously set apart or not, shall then be
liable to be subjected" &c.
| How are these two seemingly incongruous
provisions. enacted by the same authority,
and therefore OF equal dignity, to be recon-
ciled? For if waiver by the husband
alone is not in effect an incumbrance it is
worthless. But in order that there may be
an incumbrance on the homestead property
it would seem that the concurrent act OF
both husband and wife is necessary. Is
there really an irreconciable conflict here
In enacting the third section OF the act
the Legislature had in view the third sec
ton Of the eleventh article Of the Constitu-
ton, the language of which is rected; and
/ it seems very reasonable to conclude from
4 this circumstance, il from no other, that the
Legislature for reasons satisfactory to itself
saw tit to make a bond, note or other cyl
denee OF debt, containing declaration
OF waiver, in the body thereof, equiva-
lent TO ga mortgage, deed OF trust,
pledge, or other security" on the homestead
property, although technically it is neither