81 Va. 44 | Va. | 1885
delivered the opinion of the court.
By deed dated December 11,1871, and duly recorded, James R. Linkenhoker, of the county of Botetourt, declared his intention to set apart and hold as a homestead for the benefit of himself and family, under the provisions of the constitution and laws of this State, certain real estate situated in said county, of the value of $1,700, and certain personal property of value sufficient to make the realty and personalty amount to $2,000.
In the years 1879, 1880 and 1881 Linkenhoker contracted several debts to L. F. Detrick, John S. Reese & Co., and others, by bond or note, wherein he waived the homestead exemption. He died in January, 1882, leaving eight children, the six youngest being infants under twenty-one years of age. He also left two other parcels of land and some other personal property. All together, however, was insufficient to pay his debts.
This suit was then brought to settle his estate, and to subject his realty to sale to pay his debts, and in it the question was raised, whether or not the waiver of his homestead by Linkenhoker, in bonds executed by him since the recording of his homestead deed in 1871, was valid and binding on his estate. And this is the only question we are now called upon to decide; but a determination of it necessarily involves the question of the constitutionality of the third section of chapter 183 of the Code of 1873, which provides that in all cases where
Now, upon the most familiar principles, every statute is presumed to be constitutional, and it is incumbent upon those “ who question its validity to show wherein its invalidity consists.” In the enactment before us we have a legislative construction in respect to the power of the householder to waive his homestead after it has been set apart, and unless, upon an examination of the subject, we shall be satisfied that it is in conflict with some provision of the constitution, it must be sustained.
Now, while the precise question under consideration has not been before this court, yet the matter, in various other aspects, has been the subject of judicial decision in this court and in the circuit court of the United States for the eastern district of Virginia; and as the reasoning of the judges in those cases seems pertinent to this case, and goes far towards establishing the validity of this enactment, we will make a few quotations from their opinions:
In re Solomon (2 Hughes’ R., 164), Waite, Ch. J., said: “The constitution grants the exemption as a privilege to the householder. It declares that he shall be entitled to hold property to be selected by him. No specific property is set apart, but he can select such as he desires to have, and when selected, it is to be set apart. If he fails to select, the process of the law can be executed, and the sale made.” * * * *
The privilege, so far as it is given by the constitution, is
In that case the constitution, or a law containing similar provisions, would execute itself. As it would be a part of the public policy of the government to exempt that particular property absolutely from forced sale, its provisions could not be waived. It would be beyond the legal power of an officer to levy upon and sell such property.
Here, says he, however, the policy is not to exempt absolutely, but the householder has a right to claim an exemption. Whether he will make his claim or not is optional with him. If he does not claim, he cannot have; and it is difficult to see why, if he may waive at the time of the sale by refusing to select, he may not before. If he can waive at all it seems to us it follows necessarily that, for a good consideration, he may make such a contract to waive as the courts will enforce.
But it is further provided that nothing in the article of the constitution referred to should be construed to interfere with the sale of the property or any portion of it, by virtue of any mortgage, deed of trust, pledge, or other security thereon. Thus it is made expressly to appear that it was not the intention of the framers of the constitution to prevent the householder from contracting for the sale or incumbrance of the property. He was not required to hold it absolutely for himself and family. It was to remain entirely under his personal control, to be dealt with in such manner as he saw fit. His right to sell or incumber is as distinctly given as his right to select. Now all this was said in a case where the waiver antedated the claim of homestead, but the reasoning is general, and it seems to us to be as applicable to this case as to the one in which it was pronounced.
And in the subsequent case of White v. Owen, 30 Gratt. 43, it was held by all four of the judges who were present that a deed of trust to secure a debt, executed by the grantor and his wife, conveying real and personal property which had been previously set apart by the husband as his homestead, has priority over the homestead exemption, and that the property so conveyed in trust may be subjected to satisfy the debt. In this case Anderson, J., argues forcibly to show that the exemption from sale under any execution, order or other process has reference to sales by judicial procedure or under legal process, as contradistinguished from sales by the householder as by mortgage, deed of trust, pledge, or other security created by his own act. He then, in answer to the suggestion that the family have a vested right in the homestead, at least during the life of the householder, says: “I find nothing in this article which shows an intention to divest the householder and head of a family of his property, and of the unrestricted right to dispose of it as he chooses. Nothing, which by express terms or by implication, divests him of his title and vests it in his wife and children, severally or jointly with himself. If, says he, it could be construed to divest him of his property and to vest it in -others, it would operate to vest in persons; if he had no wife or children, who bore to him no such relation—to any who might constitute his family, though not even of his kindred.” Such can hardly be conceived to have been the intention. It 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 $2,000. There is not a syllable or a sentence in the whole article which indicates a
I have thus quoted at length from these opinions, not only because they show the reasons which, in the opinion of these courts and judges, influenced the framers of the constitution in allowing the homestead exemption, but because they embody our views on the subject fully as well as we could express them. If they be sound—and we have no doubt of their correctness— it is manifest that the real intention of the framers of the constitution was, as we have before shown, to confer upon the householder or head of a family a personal privilege, of which he might avail himself or not, as his views of the interests of himself and family might dictate; and that they, realizing that whilst it might often be expedient for the householder to set up his claim to this exemption, it might not always be for the benefit of either himself or family to retain it as a homestead, wisely so framed the provision as to prevent his being deprived of the exemption by the various processes of the law, whilst at the same time it left in the householder the absolute right of disposing of it which he enjoyed before the property was set apart. The homestead is a shield to protect the helpless and unfortunate debtor from the importunate and incompassionate creditor—not a millstone to be hanged about the debtor’s neck. If all this be so, it is perfectly clear that it is
It has been argued that as the words “for the sole use of the family” have been construed, in other States, to create vested rights in the family, so the words “for the benefit of himself and family” should receive a like construction. But the ready answer to this suggestion is that the use of words like these, “there shall be no waiver,” or “for the sole use of the family,” exclude the idea that the husband or father has the absolute right of property in the homestead, and shows that it is a part of the public policy of the government to exempt that par
We find no error in the decree of the circuit court of Botetourt county, and the same must be affirmed.
Decree aeeirmed.