Year: 1874

1t is too much" Curtin quite agreed with
him, and the interview ended. We have eve
ry reason to trust the gentleman from whom
we have received this story. twill probably
be found substantially correct, although there
may, of course, be errors in detail Chicago
Tribune


HOMESTEAD DECISION.


THE CHILDREN OF DECEASED PARENTS ENTI-


TIED TO HOLD THE HOMESTEAD IN PERPE-
TUITY.


SUPREME CoURT-November term, 1S73-S. Nc


Keown vs. s. Carroll ct al.-Appeal from the
Court of Common Pleas for Chester Sixth


ders.


Opinion by Willard, A. j., (Moses, G. j.,
and Wright, A. j., concurring) THE circuit
Judge having dismissed the complaint on COM
plant and answer alone, it is necessary for US
to consider whether, upon the facts stated by
the complaint, the plaintiff is entitled to the
relief demanded by him, or to any relief
whatever


The plaintiff claims to be the owner in fee
of certain lands in the possession of the claim.
ants. His title, as alleged, was derived as
purchaser at a sheriff's sale, under judg-
ment recovered in 1859 against James Yongue.
Margaret, the widow of the deceased judg'
ment debtor, obtained the assignment of a
homestead in the premises in controversy on
the 25th of October, 1869. Shielded in 1872.
The defendant, Agnes, the wife Of j. S. Car
roll, the minor child of James and Margaret
Yongue, is now in the enjoyment of the home
stead.


In January, 1872 after the assignment Of
the homestead, the premises covered by the
homestead exemption were sold at sheriff
sale, subject to the right of homestead, and
purchased by the plaintiff: He alleges that
defendants are committing waste by the des'
truction of the timber, and the answer does
not deny such waste.


The judgment dismissing the complaint
appears to have been based upon determina
tion that the right acquired under the assign
ment of the homestead, and now held by the
defendants, was in the nature Of fee simple
and that accordingly waste could not be al
legged.


At the close of the appellants argument, a
question appears to be discussed affecting the
validity of the proceedings for the assignment
of the homestead, on the ground that such as
signment was in violation of the rights Sc
cured by the judgment, and tended to impair
the obligation of the contract enforced by such
judgment. This question cannot be made at
the present time If the assignment of the
homestead was for any reason in violation OF
plaintiff rights, advantage should have been
taken of such fact in direct proceeding it
cannot be considered collaterally, as sought
by the plaintiff, in suit to stay waste. The
plaintiffs case is placed by him upon pur-
chase made subject to the homestead right,
and doubtless at price based on the assump'
tion of the validity of the homestead claims,
and accordingly he does not occupy a position
enabling him to open the question Of the va.
lidity of the original assignment.


The first question that is presented is,
whether the plaintiff shows in himself an
estate or interest in the lands of such nature
as to entite him to restrain waste on the part
of the defendants His whole claim depends
upon the validity of the sheriff's sale under
the Judgment. The defendants claim to hold
the premises in the right of the defendant,
Agnes, as an estate in fee simple. On the
other hand, the plaintiff claims to have &C.
quired the fee under the sheriff's sale.


The question then arises, did the fee Of the
lands pass to plaintiff under the sheriff's sale
Ifnot, are the defendants in a position to al
lege against the effect claimed for such sher-
ifs sale?


At the time of the sale of the premises in
question, they were subject to a right ofhome-
stead, which we must assume to have been
rightfully assigned. The constitution declares
that such homestead "shall be exempt from
attachment, levy or sale, on mesne or final
process issued from any court" 1t is clear
that this language distinctly forbids such exc
cuton Of final process as that under which
the plaintiff claims. 1t is equally clear that
as the plaintiff claims through the operation
of the law aloue, and not from any act Of the
parties, he can only take that which the law
confers on him in virtue Of the validity OF his
proceeding. Now, as the constitution is a
part of the law governing the force and effect
of the process of the courts, it follows that
that which the constitution forbids cannot be
effectually attained through the abuse of the
process of the courts Unless, then, there is
something in the proposition, that although
the land could not be sold, yet a remainder
over after the expiration of the homestead
right could be sold, the plaintiff altogether
fails to now such title in himself as he al
leges as the foundation of his demand for re-
lief.


We must then inquire whether enforcing
judgment against premises in respect of which
homestead right is properly secured, by way
of selling a remainder therein to vest in pos
session after the termination Of the right Of
homestead, is conformable to the constitution.


If the constitution, in using the term ex-
emption, means absolute exemption, then it is
clear that the attempt to sell such remain
der was violation of its terms In order to
hold that limited exemption only was in.
tended, such as would admit of stripping the
judgment debtor of title while leaving him
limited right of possession alone, it would be
necessary to find either language in the con-
stitution importing such limitation, or some
thing in the declared policy Of the enactment
rendering such construction proper. Moth
ing of this kind appears in the constitution,
or can be made out on the principles of con-
struction. The object of the constitution was
clearly to perpetuate in the judgment debtor
or his family, under certain conditions, the
ownership as we'll as the use Of the family
homestead. We are not justified in dimin-
ishing the force and effect Of the word tex
empt" as it stands in the constitution.


The plaintiff has not made out title in