Meredith v. Holmes

68 Ala. 190 | Ala. | 1880

STONE, J.

The sole question in this case is, whether the homestead is exempt from execution levy and sale, under a judgment recovered in an action of trespass. The constitution (Art. X, sec. 2) exempts it from “ sale on execution, or any other process from a court, for any debt contracted since,’7 <fcc. The statute (Code of 1876, § 2820) declares it “ exempted from levy and sale under execution, or other process, for the collection of debts contracted after April 23d, 1873.” It will be observed that the language of each of these exemptions is, “ from debts contracted nothing said about liabilities incurred, or recoveries for torts committed. This precise ques-lion, though never before raised in this State, has been many times before the courts of other States. In a large majority of the cases — in fact, in all, whose statutes employ language similar to ours, except, perhaps, the court of Illinois — the ruling has been, that the exemption does not extend to judgments and executions in actions of tort.—Kenyon v. Gould, 61 Penn. St. 292; Davis v. Henson, 29 Ga. 545; Schouton v. Kilner, 8 How. Pr. 527; Lathrop v. Singer, 39 Barb. 396. Thompson, in his work on Homestead, sections 380-1-2, approves this construction. The decision in Conway v. Sullivan, 44 Ill. 451, is based on the peculiarity of their legislation. In North Carolina, and in Wisconsin, the language of their exemptions is different from ours. In the former of those States, two of the five judges dissented, Ch. J. Pearson writing the dissenting opinion. A tort is not a “ debt contracted,” and our exemption of the homestead does not protect it against recoveries for torts. Possibly a difterent rule would obtain in the construction of sections 2823, 2824 of the Code; but we do not decide this.

Reversed and remanded.