Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-08-03
COURT DECISIONS.
DlGESTED BY w. B. MARTIN
EXCLUSIVELY FOR
VIRcINlAN- pilot.
Notes of Cases Recently Decided
Which Are Of Interest to
Our People.
v. & T. COAL & IRON CO. v. Nc
n. NLELLAND


supreme Court OF Appeals of Virginia.
June rs, 1900.
A HUSBAND WHO CLAIMS THE
HOMESTEAD CANNOT CONVEY
1T UNLESS HIS WIFE JOIN IN
THE DEED. 1T HE ATTEMPT
TO CONVEY 1T ALONE, THE
GRANTEE GETS NO INTEREST.
The court says:
In 1888 NJ. l.. McClelland. a house
e. holder and head of family, executed
ana had recorded his deed describing
a certain tract of about one hundred
acres of land. and claiming the bene-
lit or the same as a homestead. pursu-
ant to the provisions of the statute in
such cases made and provided
In 1856, being still householder and
which his wife did not unite. convey
Ing the coal and timber in and upon
The land. heretofore claimed as q
homestead. to Q. Barrett, Jr. Suisse
quenliy, Q. Barrett, Jr.. sold and con-
.veyed the same to the appellant.
The suit is brought by NJ. l.. Nc
Clelland and Frances e. McClelland,
ms wife, seeking to have set aside and
declared void the decd from NJ l..
McClelland to o. Barrett. Jr.. and also
inc deed from the latter to appellant.
In support of the prayer OF their bill
appellees rely upon section 1854 OF the
Code, which. so far as now material.
reads as follows:
The real estate set apart as afore-
said, shall not be mortSaged, encum-
pered. or aliened by the householder, IL
a married man. except by the Joint
deed of himself and his wife"
1here was no error In overruling the
demurrer to the bill. No reason has
been assigned In it's support, and we
see no ground for sustaining it, The
chief contention OF appellant is that
the statute (scc. 363D is unconstitu-
tional. because contrary to the express
language of the constitution, and con-
trary TO the intent of its trainers: the
argument being that the statute puts
q check upon the FREQ alienation Of the
homestead and Thereby impairs the
Dement'S intended to be secured by the
constitution.
Article XI. OF the Constitution. in so
far as now material, reads as follows:
sec. l. Every householder or head of
family shall be entitled
10 hold exempt from levy. seizure. gar
nishing or sale, under any execution,
order or other process his real
and personal property, or either
TO the value of not exceeding two thou
sand dollars to be selected by him."
Sec. 8. The General Assembly shall,
at its first session under this consti-
tuition. prescribe in what manner and
on what conditions the said house
holder or head of n family shall there
after set apart and hold for himself
and family. homestead out Or any
property hereby exempted. But
this section shall not be construed as
authorizing the General Assembly to
defeat or impair the benefits Intended
to be conferred by the provisions of
this article"
Sec. T. The provisions of this article
shall be construed literally. to the end
that all the intents thereof may be full
~ and perfectly carried out"
We cannot concur in the view that
the legislature has gone beyond its
power. In cnacting that the real estate
set apart as a homestead shall not be
aliened by the householder. II mar
rled man, except by the joint deed of
himself and wife. BY sec. b of the ar
ticle under consideration. the broadest
powers are given the Legislature in the
matter OF prescribing the conditions
upon which the homestead should be
placed by sec. 1864 upon the right to
alien real estate, set apart as a home
stead. Is not unreasonable. and does
not impair the benefits intended to be
secured by the constitution.
1t is further contended that while
section 1854 forbids, 1t does not invali-
date n conveyance made by the house
holder alone; that such n deed is not
declared by the statute to he void or
voidable; and that the statute Is to be
added to 1t by intendment.
Homestead statutes are always con-
strued literally. in order that their
purpose may be more certainly accom-
plished. Section of the Article of the
CONSTITUTION now under consideration,
expressly provides that the provisions
of said article shall he construed lib
orally. to the end that all the intents
thereof may he carried fully and per-
fectly out" The trainers OF the consti-
tuition are presumed to have known
the general rule of Interpretation now
contended for. and II is q most reason
BILE presumption that thoy inserted SEQ
ton into Article XI. in order to pre-
vent the application of that rule to the
statutes enacted for the purpose of
carrying out the provisions of that arti-
Gle Further. the legislature must have
had In mind the constitutional! provision
for liberal construction of these stat
utes when 1t enacted section 1884. and
therefore knew that ii was not neces-
snry to declare such n deed as that in
question void. Otherwise why should
the section have been enacted at all?
To give the statute the construction
contended for, would make II nugatory,
and defeat the plain purpose of the leg
islature. To hold that the householder
cannot convey the land set apart, ex-
cept the wife unite in the conveyance.
and then to hold that if he does do it
the deed must be held valid would de-
etroy the law. The only way to carry
out the legislative intent is to hold the
deed of the husband soluS void. This
construction is. we think. amply iusti-
fled by tho language OF the section and
the constitution.