83 Va. 371 | Va. | 1887
delivered the opinion of the court.
In June, 1878, certain creditors of the appellant, E. M.
On the hearing of the cause the corporation court declared the deeds of settlement upon Mrs. Hatcher to be null and void, and upon appeal to this court that decree was affirmed. See Hatcher v. Crews, &c., 78 Va. 460.
The appellant having never been allowed a homestead
The Constitution, section 1, Article XI., says that “every householder or head of °a family shall be entitled to * * hold exempt from levy, seizure, garnisheeing, or sale under any execution, order, or other process * * * his real or personal property, or either, including money and debts due him * * * to the value not exceeding two thousand dollars,” &c. And in Shipe, Cloud & Co. v. Repass, 28 Gratt. 734, this court held that where a conveyance is set aside for fraud, at the suit of the grantor’s creditors, he is not estopped as against them to assert his claim of homestead in the property embraced in the deed. That decision has been affirmed and reaffirmed by the cases of Boynton v. McNeal, 31 Gratt. 459, and Marshall v. Sears, 79 Va. 49.
And section 7, Article XI., of the Constitution provides that the homestead exemption “ shall be construed liberally to the end that all intents thereof may be fully and perfectly carried out.”
How, looking at these provisions and decisions, it is clear that what the householder is entitled to is a homestead—a real exemption, and not a mere right to claim a homestead. It conveys a substantial right, and not a mere right to make a claim which may or may not prove to be illusory. And
The right to have this homestead set apart to him was-not satisfied by the mere claim preferred by him in the bankrupt court.
It can make no difference that the appellant made his claim in the first instance in the bankrupt court. That claim proved practically ineffectual, and we can perceive no sensible reason that can be given for holding this claim in the bankrupt court to deprive the appellant of his homestead, which would not apply if made in any other court.
Ex nihilo nihil fit. Hatcher is therefore, in our opinion, entitled to have his homestead of $1,926 set apart to him out of the property now claimed by him, and in order to effect this, to have his assets so marshalled as that any rents that may be due for said Grove-street property may be paid out of the other assets of the claimant.
The decree of the corporation court of the town of Dan-ville must be reversed, and the cause must be remanded, to be proceeded in to final decree, in conformity with the views herein expressed.
Decree reversed.