The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1879-12-20
THE HOMESTEAD.
A Now Decision Under the Virginia
Homestead law.

in the Circuit Court of Richmond in the
cases OF Sharpless & 60. Us. joseph Rose,
Bailey & Co. rs. Rose, &c. Edward 7. Can
non and John Dunlop for plaintiffs; Judge
John A. Meredith and Meredith & Cooke
for defendants:
In each OF these cases attachments were
sued out at the time ii ins;ituting the suits
under section 2, chapter 14S, Code OF 1873,
and The stock OF goods in defendants store
was levied upon. Motions to abate the at
tachments were made and overruled. and
the property sold under the order OF the
court in vacation. and proceeds OF sale de-
posted in bank. These proceeds now await
the order Of The Court.
The defendant claims to be entitled to re-
ceive the proceeds By virtue OF 4 claim for
exemption under the homestead act, which
was made in writing under seal, and duly
recorded prior to the levy OF any cf the at
tachments. This writing specified the arti-
cIes included in the store OF defendant
which were Afterwards the subject OF levy,
and in the order OF sale the rights OF the
parties as they existed In and 10 the goods
were expressly reserved TO them As to'the
proceeds OF the sale.
The goods were Talued by the defendant
in his written claim ut the sum OF 81 ,623.
This appears 10 have been an undeT-valua-
tion The defendant continued iu posses
sion OF them for about one week after the
claim was recorded. during which time he
was engaged in selling them, day by day
and the residue, which were levied upon,
! appear TO have sold al the sherff7s sale FOR
the sum OF about S2,130. The defendant
appears to have sold one or two bills OF
goods TO one party during the week amount
| Ing to about $3.50, and the average sales at
| .t,~lA 81 ~ IC
| clerks, were about S25 per day. | think
that $500 would be low estimate OF the
value Of goods embraced in The claim which
were sold before the levy. The claim,
therefore, appears to have been some S400
| or $500 in excess OF the utmost limit ail-
! thorized by the Constitution and the sta
! tute, and to that amount, l am OF opinion,
there can be no serious question that the
creditors, in any aspect Of this case, are en-.
titlrG.
II IS objected in behalf OF the defendant
| that the plaintiffs are restricted bv section
! II Of chapter 1873 OF the Code, page lib,
! 10 single remedy in 4 case nf under-vaiu-
alton, and that the excess cannot be here
! inquired into. | do not think 90. The
section referred to merely provides one
remedy adapted to ordinary cases, in which
resort is only contem plated as matter OF
necessity to an assessment OF value by ap-
| nrasers. In this case there Is no necessity
for any conicctural assessment, for the
value has been tested by public sale, and
! the proceeds are under the control OF the
| Court.
Again, it is claimed that they sum OF
money which was paid out OF the proceeds
for rent should not be deducted from the g.
600 to which the defendant is emitted. | am
| 1T, tI,ntt ,tS f.io * nDtpnnllp
Constitution limits the claim Of exemption
TO 50. 900 OF property, and subjects that 10
! liability for rent. | sec no reason upon
which the claim can be supported for
1000, and as much more as may be liable
to the lieu OF the landlord.
| But the validity Of this claim TO its entire
extent is in question.
I do not feel that it is necessary TO con-
slider all The points presented in the aDlc
and elaborate arguments upon both sides,
both oral and written.
The claim is very yigorously contested
upon the ground OF maud, both actual and
legal.
| cannot accept the view Of counsel for
plaiptils that | am required to look inio
this whole mass OF testimony taken upon
the hearing OF the motion for abatement OF
the attachments, as well as upon TINS mo-
ton, and inquire into the motives upon
which this claim was and Is asserted. II |
should do so, and be abundantly satisfied
that il was so asserted in its orlgin-with in
tent OF actual fraud upon the creditors, |
do not think would be authorized for that
reason to reject it
1st. Because the Constitution and the
statute in comforting the privilege OF the
exemption do not debar fraudulent claim
ant from the privilege Shipe, DC, rs. Re
pass, % Grat., T33, &c.
I'd. Because this is 4 court OF common
law, AMI as such cannot go behind Geed
TO entertain an inquiry into the intent win
which il was made unless such intent he
apparent upon its face.
Bat cannot accept, upon the other hand,
the view OF counsel for the claimant that tle
question OF fraud cannot be entertained.
The Constitution in lis article upon
" Homestead and other Exemptions" and
the statutes made in pursuance thereof, do
modify 10 very great extent the tradl-
tional policy OF the law, but no court. how
ever much it might be in sympathy with
the modification, can lie justified IN setting
aside or di>regarding the law as 1t was
afGretime, except so far as it has been re-
pcaied or amended.
4 material part OF the law, rs it was
| "
in the 11Sth chapter of The Code OF Nir-
siuia, edition OF 1850. A portion OF this
chapter embodies The principle OF the re-
cording acts, which are American in origin,
but date from an early colonial period.
The lst section, However, in regard 10
! fraudulent conYeyances, is substantially the
law as it was imported by the hrSt settlers
Of the colony. The statute OF 1875, which
il rccnacts, was but continuation OF The
statutes OF Elizabeth. and those acts OF par
lament had been iudicially declared to be
but declaratory OF the principles OF the COM
mon law-Ch. j. Marshall in Hamilton Us.
Russell, l CrQnch BIG, and Roane. d., az
Fitzhuqh rs. anderson, II. and N., BOZ.
There were also when the Constitution
was framed existing statutes defining the
liens OF landlords and Judgment and eNecu-
ton creditors. and in the interest OF DEBT
ors statutes Of relief, staying the collection
OF debts and eXempting from seizure anu
sale bomesteads OF families and personal
! nroperty OF househoderS and heads OF
families.
In view of this settled policy Of the law,
and all these statutes, the 11th article OF the
Constitution was ordained. 1t refers speci'
ticallv TO all of these statutes except the
11sth Ch., Code Virginia. embracing the
statute OF fraudulent sonveyances and the
recording acts in relation thereto, and SIG
nihcantly points to that chapter ID imposing
upon the General Assembly at its first ses-
sion the duty Of prescribing - in what man
ner and on what conditions !" the dement's
contemplated iu the article should be assert
ed aud enjoyed.
80 n