The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-03-23

DULY RECORDED BE SUBJECTED BY SUB
sEQUENT DEED OF TRUST, &c.9
On Thursday the Supreme Court OF Ap.
peals decided the case OF White, &c, Us.
owen and ais, from the Circuit Court oi
Meckenburg. 1t involves an important
question upon the construction OF the home
stead provision of the Constitution OF this
State. The opinion was delivered by Judge
Anderson. The Judge, after briefly stating
the case and disposing OF other matters
raised by the record, states the main ques-
ton for the decision OF the Court, as follows :
To so much of said decree as gave prece-
dence to the homestead deed over the deed
of trust this appeal was taken by W. T.
White and w. E. Homes, the trustee; and
it presents the question for the decision OF
this Court, Can property which has been
set apart by householder and head OF q
family by his deed OF homestead, duly re.
corded, be subjected by his subsequent deed
of trust, his wife uniting therein, to the
payment Of his debts? In other words, is
property, after it has been so set apart, cx-
empted by the Constitution OF this State
from sale under the deed OF trust?
This question can only be determined,
Judge Anderson said, by q right under
standing of Article XI. OF that instrument.
To construe this article Alright 1t will not
do to assume that the trainers OF the Con-
stitution had an object in view in the nome
stead provision, or ought to have mad,
which the language they employed does not
import; and then to supply terms to attain
the supposed or desired object. Ihus,
whilst it plainly appears that it was their
purpose to enable the householder or head
OF family to set apart and hold such por..
ton OF his property as does not exceed
$4,000 in value exempt from execution OF
other legal process, il there IS no IAN
guage employed conveying the lcea
that it should be so held by him,
as to be thereafter exempt from sale or IN
crimbrance by his own act, we cannot as
sumo that such was the Intention OF the
trainers OF the Constitution, even though
we should thinl. it was proper and reason
able to have imposed such a restriction
upon his right to dispose OF bis property
bv his own act, or because we can see no
good reason why the Constitution should
authorize the householder to exempt his
property from execution, and allow him the
Unrestricted right OF disposing OF 1t Dy MS
own act. They may have had reasons for
the distinction which were satisfactory TO
themselves, though not satisfactory 10 Us.
We cannot be responsible for the reasons
which influenced the trainers OF the Constl-
tuition; nor is it incumbent on us to show
that in proposing one obiect-as, for IN
stance the exemption OF the debtors pro-
perty, or a part Of it, from sale under exc
cution or other legal process-that the other
object. c., to leave the owner unrestricted
in his right to dispose OF it by his own act
was not inconsistent nor unreasonable. but
whilst I hold these to be sound principles OF
construction, do not think that there is any
thing unreasonable or inconsistent in the OBJ
iect and intention Of the trainers OF this ar
ticle. to authorize the householder and head
OF family to set apartand hold his property,
or a part OF if, exempt from sale under exc
cution or other process, and at the same
time TO leave him the unrestricted right OF
disposing OF it by his own act.
Let us now, by an inspection OF the artl'
Gle, ascertain from its language what was
THE INTENTION OF IT'S TRAINERS.
Though it may be labor barren OF interest
and attractiveness, it seems to be necessary
Section l provides that every householder
or head OF family shall be entitled to hold
his property, to be selected by him, not ex-
ceeding the value OF $4,000, in addition tc
what is exempted by the poor laws, sex
empt from levy, seizure, garnisheeing, OF
sale under any execution, order, or Other
Drocess.n 1t does not declare that his pro
perty shall be exempt absolutely, as by thu
| laws known as s'the poor laws" But hi
shall be entitied-not required-to hold i
exempt. If he chooses he may hold it cx
empt, He cannot be compelled to do It
There is no power vested in his wife, o.
| children. or other member OF his family, K
reouire him to hold it exempt.
He shall be entitled to hold exempt. No
his wife or children shall be " entitled" bu
he personally. 1t is discretion or privi
| lege wholly conferred on him.
And it does not entite him to hold it eX
empt in general, but only from sale unde
any egecution, order, or other process. !
| evidently has reference TO sales by iudicla
| procedure, or under legal process, as con
| ltra-distinsuished from sales by his own act
as by mortgage, deed OF trust, pledge, o.
other security created by his own act.
This is made plain by section 3, where
lis expressly declared that "nothing con
tanned in this article Tin no section OF 1t no
| in all the sections. taken together)--ln tha
I article-shall be construed to interfere wit
the sale OF the property aforesaid, or an
part thereof, by virtue of any mortgage
deed of trust, pledge, or other securit
thereon"
, But it is contended that this third sectio
4 means only .
SALES MADE UNDER MORTGAGES, &C.,
which were executed prior to the settin
apart OF the property by deed Of home
stead or, il subsequent, not tor anteceder
debts. My answer is, there is no such n
striction or qualification in the language
/ the instrument, and no language employe
which implies such an intention as eithe
| by the trainers OF the Constitution. Il Th
Language is general any mortgage
l deed Of trust,2 &C., which embraces a
mortgages or other securities, Whethe
given before or after the deed
Homestead, and whether given for al
j itecedent or subsequent debts. And
lis further objected that the section doe
mot apply to property which has been 81
q apart by deed OF homestead, so as to inhib
an interference with its sale under deed
Il mortpapa &e THE language is, H or tt