Lead Opinion
By the Court,
A majority of the court is of the opinion that the decree of the Circuit Court is right, and must be affirmed.
The case depends entirely upon the construction to be given to our statutes relative to the effect of-] 'the judgment of courts of record upon the land of the debtor, and relative to the exemption of land from forced sale on execution. The statutes are as follows :
“ All judgments hereafter rendered in any court of record shall bind and be a charge upon ? the lands tenements, real estate and chattels real, in every county where the record, or a certified transcript thereof, shall be filed, of every person against whom any such judgment shall be rendered, which such person may have in such counties at the time .of docketing such judgments, or which such person shah acquire at any time thereafter, and such estate and chattels real*756 shall be subject to be sold upon execution to be issued on such judgment.”
“A homestead consisting of any quantity of land not exceeding forty acres, used for agricultural purposes, and the dwelling house thereon, and its appurtenances, to be selected by the owner thereof, and not included in any town plot, or city, or village ; or instead thereof, at the option of the owner, a quantity of land not exceeding in amount one fourth of an acre, being within a recorded town plot, or city, or village, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of this State, shall not be subject to forced sale on execution, or any other final process from a court, for any debt or liabilty contracted after the first day of January, in the year one thousand eight hundred and forty nine.”
“ Such exemption shall not affect any laborer’s or mechanic’s lien, or extend to any mortgage thereon lawfully obtained; but such mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.”
“ Whenever a levy shall be made upon the lands or tenements of a householder whose homestead nas not been selected and set apart by metes and bounds, such householder may notify the officer at the time of making such levy, of what he regards as his homestead, with a description thereof, within the limits above prescribed, and the remainder shall be subj ect to sale under such levy.”
“ If the plaintiff in execution shall be dissatisfied with the quantity of land selected and set apart as aforesaid, the officer making such levy, shall cause*757 the same to be surveyed, beginning at a point to be designated by the owner, and set off in a compact form, including the dwelling bouse and its appurtenances, to the amount specified in the fifty-first section of this chapter ; and the expenses of such survey shall be chargeable on the execution, and collected thereupon, if it shall appear after such survey that the owner of said land did not correctly state his metes and bounds, otherwise the expenses of survey shall be borne by the person directing the samé ”
“ Alter the survey shall have been made, the officer making the levy may sell the property levied upon ■and not included in the set off, in the same manner as provided in other cases for the sale of real estate on execution, and in giving a deed of the same,'5hp may describe it according to his original levy, excepting therefrom by metes and bounds, according to the certificates of survey, the quantity set off as aforesaid.” (Rev. Stat. chap. 102, Sec. 5, 51, 52, 53, 54, 55.)
Without attempting to discover a recondite meaning in these provisions, but viewing them according to their'plain and manifest import, we think that they make a judgment of a court of record, a lien upon all the real estate of the debtor, situated in the county where the record, or a transcript of it is filed, and exempt from forced sale, a quantity of land, it being the homestead of the debtor, varying from a quarter of an acre to forty acres ; the quantity depending upon the place where the land is situated and the uses to which it is applied. They provide a mode by which the quantity of land exempted from forced sale shall be ascertained when the plaintiff and the defendant do not agree, and that a mortgage or other alienation of the land shall be invalid without
We abashed by the appellant to go further, and hold that the «property is exempted from forced sale after it has ceasetl to he the homestead of the debtor; .and to accomplish this object we aiie'scalled upon to decide that «the‘judgment never becomes a lien upon the land reserved for the homestead, or which shall finally be selected by the debtor as such. We think we are called upon to go this length, for we cannot think that if the lien attaches, we can hold it exempt from forced sale whenit ceases to be?$ie homestead. We of course, do not iWend to hold thatlithe dwelling . house, situated* upon the homestead, and forming a part of it, Should be consumed by fire, or should by •any accident become untenantable, it would at once lose-its character, and become subject to sale. But we’speak of cases like the present, where the land ceases to he the homestead of the debtor by his lawful act, and with his full consent.
In’such cases we think it clear, that if the lien attaches, and the effect of the statutes above recited is merely to exempt the homestead from forced sale? the property becomes subject to sale like any other property of the debtor. To hold the contrary would be to ,maintain that property which is bound by, and subject to a judgment, and only exempted from sale to satisfy the judgment, by means of its peculiar character, when it loses its character with the consent and by the act of its- owner, is nevertheless still ex. empted from sale. We are not aware of any legal principle, nor of any fail’ mode of reasoning which
We are therefore obliged jjto consider the casé as turning upon the question, whether the lien created by the judgment does attach to all the land of the debtor, and whether the exemption spoken of in the statute is what its languagé plainly imports, an exemption merely from forced sale.
It will be seen that the fifth section of chapter one hundred and two of the Revised Statutes, above recited, in terms makes the judgment a lien upón all the land which the debtor owns at the time of docket ing the judgment in every county where the record or a 'transcript of it is filed, and all which he shall, acquire afterwards, and provides that it may be sold on execution,'while section fifty-one of the same chapter, provides that the homestead shall not be subject to forced sale on execution, or any other, final process. What is the fair interpretetion of these provisions ? Viewing them together do they mean that the lien shall not attach to all the land which the debtor owns, his homestead included? or do they mean simply what their language imports, that while the lien attaches by virtue of the fifth section, to all the land of the debtor,"the part not included in the homestead, only can be sold. In order to hold that the lien does not attach to the homestead, it must be established that that part of section five which provides for it, is modified by section fifty-one, so as to produce that effect. But the special provision contained in this section, in relation to the homestead, only exempts it from forced sale ; it does not by its terms nor its spirit, at all affect section five, except that part of it which provides for a sale of the debt*
The counsel for the, appellant contends that the husband and wife (when as in this case, the debtor has a wife) are joint owners of the homestead, and that consequently it cannot be taken to pay the husband’s debts.
This position is attempted to be supported by a reference to the fifty-fifth section above recited, which provides that a mortgage or other alienation of it shall not be valid without the signature of the Avife.
We do not think that this section tends to maintain this position. On the contrary, we think that it tends to establish' the opposite conclusion, as it seems to recognize the husband as the owner of the land, but to make his conveyance of it invalid without the consent of the wife, evidenced by her signature.
In disposing of this case, we have not felt at liberty to discuss the policy of our exemption laws, but simply to administer those which are upon the statute book, according to their obvious and fair import. If it shall be thought necessary to give the debtor the power to sell his homestead and convey a good title to his grantee, free from the effect of judgments which may exist against him, the legislature is competent to give him this power, but we cannot disre„ gard the established rules for the construction of statutes, in order to accomplish this object.
We have not thought it necessary to notice the objection taken to the bill of complaint .by the appel-
The decree of the court Tbelow must be affirmed.
Dissenting Opinion
Dissenting. I feel.it my duty not to al. low this case to pass with a merely silent dissent on my part. As I cannot place the same construction upon the several provisions of the statute to which reference has been made, and which control the decision of this case, as my brethren have felt compelled to do, it is probably better that I should state a few of my reasons, so that if further legislation be necessary to promote and secure the objects of the statute attention may be directed to the subject.
In order to arrive at the intention of the legislature ■ in the passage of the statute in question, it is proper to refer to the history of the homestead provision. The first Constitution which was presented to the people of this State (then territory) contained a provision securing to the debtor, from forced sale, a homestead. This provision was most thoroughly discussed before the people, and although that provisj ion, in the form in which it was proposed, fell with the rejected Constitution; yet the next convention called immediately thereafter, not only recognized the principle of exemption, but made it mandatory upon the legislature to provide “ wholesome laws exempting a reasonable amount of property from seizure or sale, for the payment of any debt or liability hereafter contracted.” No former contracts were to be interfered with ; but after the passage of such laws, all contracts would be made in view of the exemption allowed, and without any hope or expectation of making the property thus exempted, a re
That portion of chapter 102 of the Revised Statutes, under the head “ of exemption of property from execution,” &c., was doubtless enacted in obedience to the mandate of the Constitution before referred to, and comprises sections 51 to 57, both inclusive.
Section 5, of chapter 102, provides as follows :
“ All judgments hereafter rendered in any court of record, shall bind, and be a charge upon the lands, tenements, real estate and chattels real, in every county where the record, or a certified transcript thereof shall be filed, of every person against whom any such judgment shall be rendered, which such person may have in such counties, at the time of docketing such judgments, or which such person shall acquire at any time thereafter, and such estate and chattels Teal, shall he sold on execution, to he issued on such judgment?
Here the power to sell on execution is co-extensive with the lien created. Both, it must be remembered, are creations of the statute. At common law judgments are not liens upon real estate, nor at common law could real estate be sold on execution. The same statute that creates the lien, gives also the power
Section 51 of the same chapter provides : “ A homestead consisting of any quantity of land not exceeding forty acres, used for agricultural purposes, and the dwelling house thereon and its appurtenances, to be selected by the owner thereof, and not included in any town plot, or city, or village, or instead thereof, at the option of the owner, a quantity of land not exceeding in amount one fourth of an acre, being' within a recorded town plot, or 'city or village, and the dwelling house thereon and its appurtenances, owned and occupied by any resident of the State, shall not he subject to forced sale on execution, or any other finalprocess from a cou/rt, for any debt or liability contracted after the first day of January, in the year one thousand eight Imndred and forty-nvneV
Now in view of Jihe constitutional provision above referred to ; in view of the history which led to its adoption; and in view of the various provisions of the statutes and of the order in which they are arranged, can we fail to perceive that the real intent and object in adopting the Constitution in this respect, and of the legislature in enacting the statute
I do not, by any means, wish to be understood as saying that the construction which has been put upon the several provisions of the statute under consideration was intended to, or necessarily has, this effect; but it is difficult for me to avoid the conclusion that such is necessarily the consequence of such construe - tion.
If the lien of a judgment creditor necessarily fastens upon the homestead of the debtor, he is unavoidably riveted to that particular locality, unless he foregoes the advantages of the statute; unless he abandons
Again, the husband cannot mortgage the homestead thus secuied to him by the statute, without the consent and joining of his wife. But if the construetion here assumed be correct, he can contract debts ; judgments can be recovered against him; nay, he may, without the, consent of his wife, at any time confess judgment, and if such judgment, be a lien upon the homestead, all the safeguards of the statute are made to depend upon the locomotive caprice or necessity of the husband on the one hand,.or his inability to obtain credit or contract debts, on the other. If a mortgage cannot become a lien without the consent of the wife, it is difficult to perceive how a judgment rendered upon a debt to which the wife never assented, can be a lien- upon the homestead in which the statute gives her such a peculiar interest, as she is under the control of her husband, and by refusing to abandon the homestead with him at his request or command, might subject herself to a charge of desertion, in addition to a thousand other evils.
I barely give utterance to these suggestions, not merely as reasons why I cannot concur in the opinion of a majority of the court just rendered, but also to suggest to the law-making power a few reasons why if the present legislation be defective, it should be remedied.
I would have concurred in the judgment of the court if I could. I would have silently dissent