The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1877-08-14
rFor the DIspatch.I
uuntrnr nr HON cSfeRu.

.hor,osteah contained In Scction Oh .ciap
for 1e3. Code OF Virginia OF 1873. uhcons'i-
tutional and void? Judge Dickinson, IN IN,
casn published in the March No. OF the pa-
o;n;a Ian Journal, holds that the provision
aforesaid Is unconstitutional. and Mr.. Orr'
OF Leesburg, fully agrees with hlm' ana ell,
dcayors to sustain his opinion in an able anu
elaborate article in the July No. OF the same
journal. The precise question has NOT yet
come before our Court OF Appeals. Chlei'
Justice Waite, In an opinion delivered an re
Joseph Solomon, June. 1874, and puoiisneu
in. your paper, sustans the constitutlonaity
Of the provision.
So far as the act OF the Legislature EN-
powers a householder or head OF FANNY
to waive his homestead. after IL mas been
once properly selected, l question "he'nI :,
it's constitutionality can be maintained; =,
may be that then the family nave Ia H..
interest as can't be defeated or lmpa,leu ,, ot
anv waiver Of the houschoioer. III So
case the waiver would really DC al' cnGnn =
brance on the property, ana ~ nm W. -
etfcctuaI the wife must unite Win heT Nus
hand But this is not very practical ques'
60, for when we speak of waving the
homestead in bonds, notes. or other sectirl-
ties. we simply mean that the householdei
or head OF family, rs 10 the paItic'i':,i
dnht in question, contracts tllat nc VIII
not select homestead. ,,u,
Gan the householder or head OF family
for valid consideration legally make sucll
a contract? Judge Dickinson and Mr.. Orr
cav that he cannot. Their main argument
for this position is drawn from the supposed
,nnarcut intention of the trainers OF Article
XII OF the Constitution OF Virginia to pro.
vide for the family. They say that the pro-
tcction OF the family against the creditor
WAS the main inducemcnt for the enactment,
and that 10 allow the head OF the family to
waive the homestead would practically de-
feat and impair the benefits intended 10 be
secured to the family. Mr. Orr says 90 The
family, as well rs its head, take some posi-
tive and vested right under the Constitu.
ton
Article III. OF the Constitution must be
construed IA whcle; and it must be so
construed, if possible, to give effect to every
part OF it.. The Constitution does not grant
property OF particular description to be
held as Il homcStead; il c0nfers the right to
select property to certain amount. Chief
Justice Waite, in the case above cited, says
ct he privilege, so far as it is given by the
Constitution, is personal to the house
holder. The language Is to be selected dy
him. III he neglcctS to act no one Is author
lied by the Constitution to act in his place.
1t is true the fifth section OF Article nj.
provides that the homestead shall be held
for the benefit OF the householder and
family, but the interest OF the family cannot
attach until the householder or head has
called the homestead into existence by eN-
crcising his constitutional right OF select
ing. Mr. Orr thinks the wife or any
selection. II i admitted that there Is
nothing in the language OF Article NJ.
comforting any such right il terms.
do not think it is implied; but, on the
contrary, such right seems to be excluded
bv the provision that the householder
or head of family shall abe entitled" to i
homestead, "to be selected by Tim "-e~-
Dressuna fact cesSurc tGcitum. 1t must be
supposed that if the trainers OF the Consti-
tuition had intended to grant Il right OF Sc
Letting to the family they would have uset!
proper and opposite words for that purpose,
and would not have lett it to implication.
The very fact that they contemplated mainly
the benefit OF the family would have IN
sured the introduction OF such words had
they deemed it wise and proper to confer
such right Of selection upon the family. !
do rot think that the trainers OF the Consti-
tuition intended to do, or could properly
do. more than provide for the FAMILY indi-
rectly, incidentally. and through its head.
They had the right in eNcmpting large
amount OF property from debt to provide
upon what terms and conditions it should
be held; but it would have been strange
and very high-handed exercise OF power to
have conferred this right OF selecting Il
homestead on mans family. Surely ii
could never have been intended to divcSt Il
man of the control OF his own property al
the option of his wife or infant child. II
NAV not under the peculiar circumstances
of the case be wise and iudicious thing
for a householder to select homestead. He
may be man OF small capital, engaged IN
mercantile pursuits, and his success in bust
ness may depend on preserving his credit
He knows that if he selects homestead and
cXempts the little property he has from La
biIty for his debts his credit will be gone,
And vet, il Mr.. Orr's position be right, the
family of the man, or any member OF it
NAV claim and have the homestead sci
apart, and thus defeat the husbands right
TO control and manage his own property
according to his own best Judgment. Surely
we cannot imputc such Il purpose rs this to
the trainers of the Constitution. 1t does moi
mt all follow that the family have right TO
select because they have some interest in
the property after it has been selected.
When 4 married woman'S property, I'M
der what is known as the wfe's equity, i,
to be settled upon her 4 court OF chancery
always directs it to be settled upon her and
her children, and yet, though the children
are interested in the settlement. no child
can file bill or petition to raise the equity.
The application must be made by the wife,
and by her alone. II, then, the house
holder or head Of the family alone can sc.
lect Il homestead-if his will is necessary to
call the homestead into existence, and it Is
left to his judgment and discretion to select
it or not, as he things best-then it would
seem to follow necessarily that for Il good
and valid consideration he may contract
that as to any particular debt he will not
select it. II he can decline to exercise his
right of selecting altogether and have his
property liable to all debts, he can surely
contract to waive his right to select as to
any particular debt. Judge Dickinson
saws tan agreement to waive this right
is illegal and void; must be regarded as
made under species OF duress in which
the creditor has greater facility for gaming
an unjust advantage over the oppressed
debtor" 1t is difficult to see the force
Of This reasoning. The contract to waive
the homestead, like every other contract,
might be void If made under duress; but
su6Dose it is made voluntarily and for a
valid consideration, and made by person
who has the right, and knows that ne has
the right, to select homestead; can there
be any objection to contract OF that KIND
on the ground of dUress or undue adyan-
tage? Certainly not. Such reasoning "ould
v;ti,te every contract between debtor and