The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1878-01-24
THE HOMESTEAD LAW.
~
IMPORTANT DECISION OF THE surEENn
COURT OF, APPEALS.


monwealth-is one which. for some time,
has excited much interest in all parts of the
State. Different opinions have beeli enter
tanned and expressed by both the bench
and bar, in various parts OF the State, and
as the question is one Of great practical i'm
portance to both the citizen and tie Com
monwealth. all have looked anNiouslyto the
disposition which would be made Of it when
the Court Of last resort would be invoked to
pass upon it, 81
The Supreme Court OF Appeals sitting at
Richmond, on the 18th inst, unanimously
decided in the case of the Commonwealth
for &C., rs. Ford and a:s.,-Jndge Burks de-
livering the opinion-that the Homestead
Exemption cannot be claimed against the
Commonwealth by defaulting officer or
by the sureties on his official bond.
The facts Of that case, SO far as they are
necessary to be known to properly under
stand the decision, are briefly these
Peyton r. Ford was u defaulting tax col
lector for Madison township in Charlotte
county. At the May term of the Circuit
Court OF that county in 1874, the Common
wealth, suing at the relation of the Treas
urer OF the county, recovered Judgment
against Peyton r. Ford and his sureties on
his official bond. for the sum OF 81 1854. 30,
with interest thereon from June, 1874, and
$500 costs. On this Judgment execution
was duly issued against the goods and chat
tells of the said defendants. Ford, the prin-
cipal obligor in the bond, was utterly in
solvent at the time the judgment was rem
dered, but his sureties had ample property
to satisfy the execution. Prior to the de-
livery of the execution to the Sheriff. the
sureties executed q Homestead Deed claim
The Sheriff, being in doubt as to the pro-
priety of levying the Il ia on the property
claimed in the deeds to be exempt, returned
''no effects A chancery suit was institu-
Court of Charlotte county to enforce salts
faction OF the Judgment out of the property
OF the suretics, as the principal was hope
lessly insolvent. The sureties claimed that
been selected by them and set apart as their
respective homesteads, pursuant to the 18th
Article OF the State Constitution and the
Acts of the General Assembly giving effect
thereto, commonly called the Homestead
law. They claimed that they were neither
public officers, officers of courts, fiduciaries,
nor attorneys at law, as to the judgment
sought to be enforced against them, but
were merely the suresies of a public officer,
and insisted that they did not come within
any OF the excepted classes in the 1lth Ar
ticle of the Constitution, and were entitled
to the fullest benefit. of the exemption. The
Court held that the Convention and Legis-
lature of Virginia in providing for the Home
stead Exemption, intended to create an eX-
emption which should be good against all
manner of debts and liabilities incurred
after the adoption Of the Constitution, save
those embraced in the LIST section Of the 11th
Article of the Constitution and that tie
State, although not expressly mentioned in
said article or in the legislation to eflectuate
it, is embraced within its operation by ne
cessary and unavoidable implication, in all
cases except those designated in the eXcep-
tions aforesaid and that the third excep-
ton, in relation to the liabilities incurred
by public officers, fiduciares and others, is
personal to the defaulting officers, and does
not extend to the innocent sureties and
that, it appearing that the demand against
the defendant sureties is demand incurred
they were entitled to their homestead eX-
emption as against the Commonwealth, the
plaintiff in that suit.
The Commonwealth appealed, and Judge
Burks, in delivering the opinion of the
Court, said
1.-The main question to be decided in the
case, is, whether the sureties of public Of
ficer, who has made default in accounting
for State taxes collected, and against whom
and the sureties on his official bond. a judy
ment has been recovered for such default,
are entitled to claim the exem pton allowed
by Article / Of the State Constitution and
the Act of the General Assembly giving eff
feet thereto. The Act adopts the words of
the Cons titutou, and is as follows:
every householder or head of family
shall be entitled in addition to the articles
Low exempt from levy or distress for rent,
to hold exempt from levy, seizure, garni-
sheeing or sale, under any execution, order
o. other process, issued on any demand for
any debt heretofore or hereafter con tracted.
his real and personal property, or either. in
Guiding money and debts due him. whether
heretofore or hereafter acquired or contract
ed, to the value of not exceeding two thou
sand dollars, to be selected by him, provi-
ded that such exemption shall not extend
to any execution, order, or other process is
sued on any demand in the following cases:
LIST. For the purchase price of said prop
erty or any part thereof.
I'd. For services rendered by laboring
man or mechanic.
Sd. For liabilities incurred by any public
OuCef, Ut OlllCCT VI II COuIG, VI any uutiCldIy .
or any attorney at law for money collected.
4th. For lawful claim for any taxes,
levies, or assessments accruing after June
l, 1866. =
9Th. For rent hereafter accruing.
9th. For the legal or taxable fees of any
public officer, or officers of court, here
after accruing
The seventh section provides that the pro-
visions of this article shall be construed lib
orally, TO the end that all the intents there
OF may be fully and perfectly carried out.
One of the intents, manifested in the plain
est terms, was to apply the exemption to
debts contracted prior to the adopt ion OF
the Constitution. This intent was defeated
because the clause designed to give it effect
was to that extent in violation Of the Fede :
eral Constitution. aud was so declared by the
Court of Appeals in the Homestead cases
decided in 1872 and reported in p Graft.
Was it Intended to embrace the State within
these sweeping provisions? Roy NEST lie
per ascun statute, 81 IL ne soft eapressment
nosmc: the king is not bound by any stat