Neely v. Henry , 63 Ala. 261 ( 1879 )

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In the absence of statutory or con” ' stitutional exemptions, the law subjects to the payment of debts any and every beneficial interest of the debtor in property, real or personal, whether the interest is legal or equitable, held severally, jointly, or in common with others. Nor is there any intendment that the parties have in view only the property which the debtor may own at the time.of entering into a contract, or to which he may then have an inchoate right. Subsequently acquired property is as liable to the payment of debts, as that the debtor may own at the time of creating a debt. A State law, which sought to release such property from liability for the payment of past debts, would impair the obligation of contracts, and violate the constitution of the United States.' — Sturges v. Crowninshield, 4 Wheat. 198; Nelson v. McCreary, 60 Ala. 301.

The constitution makes liberal exemptions of property, real and personal, from liability for the payment of debts, but declares, “The right of exemptions, hereinbefore secured, may be waived by an instrument in writing; and when such waiver relates to realty, the instrument must be signed by both the husband and the wife, and attested by one witness.” Statutes have been passed to regulate the mode of waiving, and suits and judgments upon contracts as to which the right of exemption has been waived, and are now embodied in the Code, forming tbe second chapter of part two, title 6, sections 2846-50. It is first provided, generally, that the claim of exemption may be waived by an instrument in writing; secondly, that any person, entering into a written contract to perform service or work, or to pay money or property, may, by stipulation in writing, waive homestead, and other exemptions under the provisions of the preceding chapter (which defines the extent of the exemptions, adding to those made by the constitution), either in whole or in part, specifying the part to which the waiver relates ; but, if the waiver" is by the husband, and of the homestead, or any part thereof, it is not valid without the voluntary signature and assent of the wife, &o. It is next provided, that where the purpose is to waive the exemption as to personal property, if the intention to waive is clearly expressed, it may be included in any instrument of toriling, bill of exchange, promissory note, or contract; but, if the waiver is of real estate, it must be made by a separate instrument in writing.

_ The note on which the present suit was founded, was given by a married man, and contains this clause : “I hereby waive all and every right which I may have, under the constitution and laws of Alabama, to have any property exempt from levy and sale under legal process; it being the true intent and meaning of this waiver of exemption, to subject my property to the payment of this note in full, of principal and interest.” The validity of this waiver is questioned upon|Several grounds; the first of which is, that the part of the debtor’s property, to which it applies, is not specified. A specification of the property is necessary, when the waiver extends to a part. It is the right of the debtor to waive the exemption as to a part, or as to the whole of the property. If the waiver extends only to a part, the part must be specified, so that the property which becomes subject to the payment of the debt, may be identified, and distinguished from that which is not liable. When the waiver is of all claim of exemption, as in the present case, there can be, of eourse, no specification of particular property. The constitution and statute confer an unqualified right on the debtor, to waive not only the exemption of particular property, but the claim for the exemption of any property lohicliis noto, or may he, exempted from sale on execution or other process.

It is next insisted, that the waiver is not valid, because it is in terms broad enough to include the homestead, and is embodied in the promissory note, which is not signed by the wife of the debtor. A waiver of exemption is. a contract, and it must be construed, and have the operation and effect of other contracts. As a waiver ■ of the claim to a homestead, or other realty, the clause found in the note is without operation or effect, not only for the want of the signature of the wife, but because the statute prescribes a separate instrument, as the only mode of waiving an interest in lands. This, however, is not a reason for pronouncing the waiver invalid, but a reason for reading its general words as intended by the parties to operate only on the claim of exemption of personal property. There is no rule of construction of written instruments, of more general application, or more beneficial in giving effect to the intention of the parties, than that it shall, if possible, be so interpreted ut res magis váleat quam pereat; and where a contract cannot operate in the precise manner, or to the full extent, intended by the parties, it shall, nevertheless, be made as far as possible to effectuate that intention. The intention to waive his claim of exemption, as far as he could do so by a clause inserted in a promissory note, is clearly expressed. It was doubtless on the faith of the waiver credit was extended to him. The purposes of justice, the intention of the parties, are answered by simply interpreting it as a waiver of the claim of exemption of personal property.

The waiver may, as in this case, be broad enough in its terms to embrace not only property owned at the time of making it, but subsequently acquired property : it may be as broad as tbe right of exemption; and that is not limited to property owned when the debt is contracted, but attaches to subsequently acquired property, as ownership may vest in the debtor. We have noticed the several obj'ections taken to the validity of the waiver, and concur with the Circuit Court, that they cannot be sustained.

Let the judgment be affirmed.