Whitaker v. . Elliott ( 1875 )


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  • RrNuM, J.

    The case is this: In 1860, the plaintiff sold and conveyed the lands in dispute, to the defendant, and in payment therefor, took from him the notes of one Samuel Wilkins, which were payable to the defendant and by him endorsed to the plaintiff. A judgment was obtained against Elliott on one of these notes in 1868, and execution was levied upon the land after the adoption of the present Constitution, and the land was sold under a ven. ex. in 1870, and purchased by the plaintiff, who brings this action to recover possession under his said purchase and the sheriff’s deed. The defendant claims a right of homestead in the land; and whether he is entitled to it, is the question.

    Art. 10, sec. 2, of the Constitution provides, “ That every homestead and the dwelling and buildings used therewith, not exceeding in value one thousand dollars, to be selected by the *188 owner thereof,” &c., * * * * “ shall be exempt from sale under execution or other final process obtained on any debt. But no property shall be exempt from sale for taxes or for the payment of obligations contracted for the purchase of said premises.” This language of the Constitution is so unam-bigous and plain, that the only enquiry left to ns is, was this note on which the judgment was rendered and the land sold, “an obligation contracted for the purchase of the premises,” by the defendant ?

    In the construction of a State Constitution, words are not to be taken in a narrow and technical sense, but in a general and popular sense, so as to give effect to the intent of the people in adopting it. The word “ obligation ” as here used, therefore means a debt contracted to be paid, or a duty to be performed by the purchaser, as the consideration of the purchase of the premises.

    If the plaintiff had accepted the notes of Wilkins, without endorsement, the land would have been paid for as effectually as if he had received the entire consideration in cash. But when he required as a part of the trade, that the defendant should endorse the notes, and they were accordingly so endorsed by him, then the notes were not received as cash, but as the “obligations” of the defendant as well as of Wilkius. The transaction is the same in effect, as if the plaintiff had sold the land to the defendant, taking the joint notes of Wilkins and himself for the purchase money. The case then falls directly within the restriction of the Constitution, excluding him from a homestead which he has not paid for, and of which, therefore, he is not the “ owner ” as against the obligation contracted for its purchase. The principle is a salutary one, and founded on the highest degree of morality and good faith.

    There is error. Judgment reversed, and judgment for the plaintiff.

    Per CueiaM.

    Judgment accordingly.

    Settle, J. Dissents.

Document Info

Judges: Rrnum, Cueiam, Settle

Filed Date: 6/5/1875

Precedential Status: Precedential

Modified Date: 11/11/2024