Year: 1878

1 to decide this question. tits also provided
in said Sd section that :. in all cases where
| a debtor or contractor shall declare In the
body OF the bond, note, or other evidence
Of the debt or contract, that he valves as to
such debt or contract the exemption from
| liability of the property which he may be
entitled to hold exempt under the ,proyi-
Esiony Of this act, the said property, traether
lpreUioust1 set apart OF not shall then be
liable to be subjected for such debt or con-
tract, under legal process, in like manner
and to the same extent as other estate OF
I the said debtor or contractor" &c. IL O
mere waiver by the householder Of his right
to exemption, after he had setapart the pro-
perty which he claimed in BIS deed OF
homestead, would render the property so
set apart subject to the payment OF his debt,
the conveyance OF said property by mort
gage or deed OF trust for the payment Of
said debt would effectually subject It to the
payment of the debt; for it is in effect. and
to all intents and purposes, waiver Of his
right to exemption.


THE CONsTrTUTI0NALITY


OF this clause OF the said Sd section OF the
act Aforesaid was brought in question in re
Joseph Solomon, Hughes's Report,
page 1854. and was held to be con-
stitutionaI. It is true that the waiver
in that case was made prior to the
deed OF homestead, and the decision was
only in reference to the validity OF the
waiver prior to the setting apart the prop
erty claimed as the homestead. Yet Chief
Justice Waite, in considering the question
as to the constitutionality OF this provision
OF the act, makes no distinction between
prior and subsequent waivers, and his
reasoning tends to sustain the waiver whe-
ther made before or after the homestead.
And the reasoning of this Court in the re-
cent decision Of Read Us. The Union Bank
OF Winchester (not yet reported). Judge
Christian delivering the opinion, fully sus-
tains the views which I have taken Of the
constitutional provision in relation to the
homestead. Judge Christian says, speak
ing for the whole Court: "The jus dispo.
nendi is one OF the most valuable incidents
OF property. Without it property is OF lit.
tie or no value. The value which this right
gives to property is benefit to the family,
as well as to the head OF the family. In the
impoverished condition Of this State the
great majority Of householders and heads
OF families do not own over


TWO THOUSAND DOLLARS WORTH OF PROP


ERTY.





II the head OF the family is prevented by
the fact that he cannot waive his home
stead from obtaining credit-his fam
ily must OF course suffer by it.
So far from being benefit to his family, it
would seem to me positive disadvantage
to allow him to hold $4,000 worth Of pro-
perty upon which he could never raise q
dollar for the support OF his family or the
education Of bis children. The true in
tercst and real benefit to the family is,
think, to utilize the property exempted, and
to make it the basis of credit" This reason
ing is as appropriate and as persuasive to
enforce the right OF the householder to dis
pose OF his property, after it has been set
apart, as before.


These conclusions have been drawn from
the homestead article of the Constitution
itself, seeking only to arrive at the intention
and design OF the instrument and its trainers
from the language they employed. And if it
De said that the design and purpose are diff
ferent from what was supposed to have been
intended by the trainers OF the Constitution,
our only reply is, Ita len Scripta est, and
that must be our guide. 1t is not the pro-
vince OF the courts to make constitutions
and laws, but to expound and enforce them
as they are written.


HIVE Qeeueu IL unnecessary 10 GO


OUTSIDE OF VIRGINIA
to consider the decisions upon the home
stead provisions OF other States, or to re-
concile them with the foregoing views,
there being essential differences in our
homestead law and that Of several OF the
States, as shown by Judge Christrian
supra, to which beg to refer.


Upon the whole, am of opinion to re-
verse the decree OF the Circuit Court so far
as it gives precedence to the homestead
deed over the deed Of trust, and to affirm it
so far as it is not inconsistent with this
opinion.


Judge Christian concurred fully in the
opinion. Judges Moncure and Staples con-
CURED in the result, but were not prepared
to assent or dissent from all the positions in
the opinion, not considering them neccssa-
riy involved in the decision OF this case
Judge Burks did not sit.