Year: 1878

MARCH 23, 1878.


thereby exempted, or any portion thereof,
to any lien by reason OF any execution
IleYied on property which has been subse.
/ quently restored TO the defendant or to
i other lien described in the section.s The
! property herein mentioned, which shall not
4 be subjected to the liens described in the
section, is unquestionabIy the same prop
Ierty which Is referred TO In the Sd section
as tsthe property Aforesaid"
The property which - --,4.-,-,.
1 IS NOT 10 BE SUBJECTED TO THE LIENS


mentioned in section is stthe property
hereby exempted" which can only be the
property which has been selected and set
tapart by the householder by his deed OF
| homestead. For until that Is done it is not
exempted. And this is the property which
| is declared in the Sd section that nothing
in the homestead article shall be construed
| to interfere with the sale of, under mort
gage, deed OF trust, &c.


But IL the provision is not made with
reference to the property exempted by the
homestead, to what property OF the house,
holder can it apply? II it should be said
that it applies to the property which by the
| first section he is entitled to hold exempt
from execution, that cannot be known as
exempted property, and is not, in fact, ex-
empted property until 1t is set apart by the
deed OF homestead; and after being so set
apart and exempted, it may be sold under
anu mortgage, deed Of trust, pledge, or
other security, whether given before or
after it is so set apart by the owner; for the
language is broad enough to embrace both
descriptions, and there is no exception or
qualification. And think it will! be seen,
in the further investigation Of the subject,
| that this Interpretation is consistent with
the whole scope ofsthe homestead article,
and with all its parts.


I find nothing contained in this article
which shows an intention to diyeSt the
householder and head Of q family Of his
property, and OF the unrestricted


RIGHT TO DISPOSE OF IT


as he chooses-nothing which, by express
terms or by implication, diyests him OF his
title and vests 1t In his wife and children,
severally or Jointly with himself. II it
could be construed to livest him OF his
property and to vest it in others, it would
operate to vest 1t in persons, ii he had no
wife. or children, who bore to him no
such reation-to any who might con-
stitute bis family, though not even OF
his kindred. Such can hardly be conceived
to have been the intention. 1t is plain that
the whole purpose and intent OF the article
was to enable the owner Of the property,
if he desired, for the benefit OF his family, TO
hold so much OF it exempt from execution or
other legal process as did not exceed in
value $4,000. There is not sentence or
syllable in.the whole article which indicates
a purpose to deprive the owner OF the pro-
perty of his JUS diSponendi, or to hold 1t
exempt from seizure and sale except under
execution order or other judicial process.


Nor is there in the deed OF homestead,
which he is authorized to make by the act
of Assembly pursuant to the 9th section
of this article OF the Constitution. 1t is
not all alienation OF his property. 1t does
not diyest him OF his title and vest it IN
others. It is merely designed to set apart
to designate-thc portion OF his property
which he claims TO hold under the home
from seizure and sale under any execution,
order, or other legal process, and to give
notice OF it to the world.


But it is contended that although the title
does not pass by his deed OF homestead from
himself to others it is


A COVENANT ON HIS PART


TO hold il for himself and others, and that
he cannot afterwards alien or cucumber i.
There is no express trust. II it can be i'm
piled, what is the object and purpose OF the
trust? 1t cannot exceed the powers vested
in the householder by the Constitution;
that is to hold it exempt only from execu-
ton or other legal process. He is not re-
uuircd to hold it for the uses OF the trust,
exempt from sale under mortgage, deed OF
trust, pledge, or other security to which he
may choose, in the exercise OF his Jus diSpo-
1endi, to Subject it. The sale or incum-
brance OF the property by the owner himself,
after he has executed the deed OF homestead,
is not incompatible with such declaration
OF trust. His agreement to hold it exempt
from levy, seizure, and sale under eXecu-
ton, for the benefit Of himself and family,
as he is authorized to do by the Constitution,
does not forbid his making sale OF tor en-
cumbering it. Such an inhibition might
not be for the benefit OF his family. 1t might
be seriously to its disadvantage. The right
to alien or cucumber might be necessary to
give him credit or the means OF providing
for his iamiy's subsistence. Whilst sale
under execution or other process. would
take away from his family without yielding
anything in. return to contribute to its
support,


TIE EFFECT


might be the same OF sale under mortgage
to satisfy antecedent debts. But that would
be no worse than q sale under mortgage
which was executed prior to his deed OF
homestead, and it is conceded that he could
not hold his homestead exempt from sale
under prior mortgage. The trainers OF the
Constitution seem to have considered that
there were grounds for distinction be-
tween sales under execution or other legal
process and sales made. under mortgage or
deed OF trust, or other securities created by
the act Of the party. Hence they author
lied the owner Of the property to hold it
exempt in the one case, whilst they did not
in the other. Aud now il, after the eXecu'
ton Of the deed OF homestead, the house
holder must be regarded as holding the
property in trust for the benefit of himself
and family, it is only that it may be exempt
| from sale under execution, or other process
for no other exemption is authorized by
! the Constitution) and does not, and was moi
intended, to interfere with his right to alien
or cucumber the same. =


The fifth section does not vest the home.
stead in his family 1t only authorizes the
Legislature to prescribe in what manner
and on what conditions he may


SET APART AND HOLD


for the benefit OF himself and family por
ton Of his property exempt from execution
or other legal process. This section was
designed to provide Tor. carrying into exc
cution the homestead provision, which the
Legislature has done by chapter 1S3, Code
1873. D. 1lGS. After authorizing every house
holder and head Of a family, almost in the
-. ~, fo1 1~,I,