The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1879-12-20

goods embraced in the claim were not paid
for, and therefore not liable under rhe Con-
stiturion 70 the claim OF exemption as to
the vendors, some Of whom are parties to
this controversy, and yet there is not only
no recognition OF the rights OF these Tend-
ors, but in the vague and general descrip-
ton OF the property an apparent effort to
embarrass them in its Identification. The
recorded writing OF the defendant claiming
exemption therefore must be considered as
entirely void unless it be clearly such q,
writing as the homestead act contemplated
and required.
claim, as asserted in the deed or writing re-
corded by the defendant, is protected by
the homestead statute.
The Constitution does not speak OF
homestead in personal property, but only
uses the word homestead in its proper
meaning as regards real estate, and as to
personal property speaks only OF "eXemp-
tion." aud that as the alternative benefit.
The statute follows the Constitution, and
provides primarily for homestead. and.
secondarily. an equivalent value OF per-
sonal property as an exemption from levy,
seizure, &c, &c.
The manner and condition upon which
the right to hold such personal property eX-
empt in lieu OF the homestead shoutG be en-
ioyed f. clearly prescribed in the statute.
The householder is required to designate
the property selected by him in writing.
with the value affixed to each article, the
writing to be recorded. and the property TO
be held in the same manner, under the same
limitations, and subject 10 the same eordi-
tons as TO lncGmbrance and sale, and in all
other respects as provided in the case OF 4
homestead.-Scc.ion u, chapter 1873. Code
OF 'II3. 1t is especially provided that in the
case OF the Homestead. and consequently OF
the personal property so claimed, that 1t
shall not be mortgaged, incumbered, or
aIlened by the owner. il q married man,
without the joint decd OF himself and wife,
&c, &c.-scc:on !.
In this case Rose, married man, claims
in his deed to hold certain specified goods,
"in the store now occupied by me- e--
empt under the Constitution and statute,
and accompanies this claim with the farther
claim Of "riyht OF disposing Of them Tor
the purpose OF carrying on the business
now pursued by me, and Of reinvesting the
proceeds OF any sale I.may make Of any OF
the aforementioned goods"
Now, this claim is, to my mind. mani
feStly inconsistent with the conditions pre-
scribed in the statute. In the business Of
q retail store certaiRly each sale could not
be con>ummated by the joint deed OF hus-
band and wife, nor could the proceeds Of
sale be reinvc>ted rs contemplated by the
statute.-SCction l3. Until designation
OF any new purchases could he made and
placed upon the record, they were entitled
10 no protection [Scction 13, and opinion
OF FilZhugh, j., in Le,dy rS. Gordon, Va.
L. j., ~. p. 440l, and thc,purpose contem-
plated and claimed by the defendant in
yolved Il miXing-up day by day OF exempt
and .nOn.cXcmpt goods upon the same
creditors or the officers OF the law
could distinguish the one from the
other. Such a claim has no recognition
in the statute. II is naked assertion OF a
right to the exemption OF the goods deSig-
mated, with reputation Of the conditions
upon which alone The law conceded the
right. II is claim eadens rOce under the
statute and against the statute, and as such
cannot plead the protection OF the statute
to give it any validity against the statute Of
fraudulent cOnVeyances.
But it was urged in argument that the
Limitation upon the husbands power OF
alienation and sale was unconstitutional. ]
am unable TO appreciate the force OF this
objection. The Constitution-Article IL,
| section 5-cXpressly empowered the Gene
raj Assembly Gin its discretion TO deter
mine i'm what manner and on what condi-
tions the householder may hold for the ben
eft OF himself and family" the exempted
Dropcrtv. This discretion must have con-
templated some protection to the benc-
ficiaries OF the exemption, and the
family are named with the house
holder as bcncticiaries. 1t may be that
the denial TO the husband OF The jus diSpo-
'nendi would be an unwise exercise OF dis
cretion; but il the General Assembly
thought differently, TO deny them the power
to give effect to their judgment would be
to deny them the right OF discretion.
The Court OF Appeals and the CHIEF
Justice OF the United States have up
held the right OF the General Assem-
blv to authorize a waiver by the nus
band and father Of the hOmcstcad-R Reed
rs. Union Bank, 20 GrGttdn, Il9-tn re
Solomon, HugheS, 1Gt-and have held that
the Constitution did not itself deny the Jus
disponendi. But the decisions have GER
tainly gone no farther. 1t certainly has
never beer decided that il the General AS.
semhly in its discretion had thought proper
TO leuv the right of waiver that such denial
in the decisions so far as they have gone,
that the Convention in lis discretion did not
think proper to deny the jus diSponendt,
brt in committing 10 the discretion OF the
General Assembly the prescription OF con-
liliopS upon which the benefit con;cm-
mated might be made available to the famI-
iv, I am clearly OF opinion that they gave
70 the General Assembly the right TO re-
ouire the joinder OF the wife in the a!lcna-
ton of the property.
In White Us. Queen, 80 Grdttdn, 81, Judge
Anderson does express some question OF
the constitlitionality of this Limitation upon
the husbands power Of alienation, and
Judge Christian seems to have c0ncurred
but Judge Anderson says that the question
does not arise in the case, and that he does
not mean TO decide 1t. In Hat0rt rs. WeH-
ford, 81 Grattdn. 356, II seems 10 me, now
ever. that the question Is practically de-
cided to The contrary, and that decision was
cited and in this particular approved IN a
.,,Il later case than White rs. Owen Helm
Us. Helm, so GrattGn, 400.
In Hatori's case was of opinion that the
widow was not entitled, under the letter Of
tbe statute, TO the benefit OF the homestead,
| and thai il the statute had conferred the
rirht il would have been unconstitutional.
| 7 Thought that the 1lth article OF the Constr
tu,ion. headed Homestead and Other EX-
emptions,' in its provisions and reference
TO then existing statutes upon The same SUB
ipcts, was clearly designed to be exclusive
OF any power in the General Assembly 10
leglslTe upon the subject except In con-
iormitv 10 lhe prescriptions OF the Constl'
tn,ioD. and that the general powers OF legis-
lation by the General Assembly As the de.
| - IL loIo1rntnd SnNpreiNnlN OF