L. H. Dellinger v. . A. G. Tweed , 66 N.C. 206 ( 1872 )

Reatos, J.

Hitherto, the only objection to homestead exemption has been, not that it violates the Constitution of the State — for it is in that instrument it is provided for — nor yst, that it violates public policy — for it is in universal favor —bat, the objection has been, that it was in violation of the Constitution of the United States, which forbids a State to pass a law which impairs the obligation of contracts.

This case steers clear of that objection, for hero was no contract at all, but a tort. This case, therefore, involves nothing but a construction of our State Constitution, the rule in regard to which is, that we must seek for its meaning, by the consideration of its language, and its common acceptation, making sense.

If the object oi the Constitution was' to defeat creditors, it was a wicked purpose, and in conilict with the Constitution of the United States. If the purpose was to secure homesteads, then it was a commendable purpose, and quite within the power of the State. It is but common respect to the intelligence and virtue of the people, as assembled in Convention, to suppose that they intended to do the latter. The article upon the subject in the Constitution, is entitled “Homesteads and Exemptions and secures a homestead to every man who lias one, and to his family without regard to his indebtedness. The object being, to establish homesteads, as institutions in the family economy, and in the interest of society. And if debts stand in tbe way, they must go by the hoard,” as anything .else must, not by design, but incidentally. And yet .it is amazingly common, to hear it discussed, whether it was intended to defeat this or that debt; whereas, it was intended to defeat nothing, but to secure a homestead. And, therefore, if a debt come in the way — that must give way ; and if damages for torts come in the way — they must give way.

Against this view, it is objected that the words used are? “ any debt,”, and that debt is necessarily founded on a contract. And, therefore, while the homestead cannot be sold underex-ccution at all, yet, it may be sold under an execution obtained on Vi tort, or on damages.

To ibis jfc is answered, that if tb« language of tbo Constitution, is to bo understood in the ieehniee.l sense of the term used, then, there is no homestead exemption at all; for it was neverIcnown that an execution issued, or v/as obtained upon a debt, or upon a contract, oy upon a tort, or upon damages. An execution, in all cases, issues or is obtained' upon a judgment. Bo that, instead of reading «.ho Constitution as it is, “rludl be exempted from salo undov execution, or other final process, obtained vv.y debt,” we ¡mrf read it as it must necessarily mean, to make sense, “shall be exempted from sale under execution obtained on any judgment j or else we must hold a judgment to mean a debt, as clearly it does. And then, the manifest intention will be carried out, that the homestead shall not bo sold under execution at ally except in the cases named in the Constitution. But then, it is asked, if the Constitution jnoa no judgment instead of debt, why did it not say so ? It may just as well be asked, if it meant contract, why did it not say so ? It does say plainly enough, and expressly that it shall not be sold under execution, and that was the main idea to which the Convention was advertent; and it was inadvertent in describing upon what the ex-execution was to issue, as well it might be, because an execution cannot issue except upon & judgment.

We admit, that a plausible argument against this view, is founded, upon the impolicy of allowing a man to commit torts, with impunity. But we think, a still more plausible argument might be founded upon the impolicy of allowing a man, to avoid debts, with impunity. But the Constitution does neither. It, has nothing to do with allowing men to commit torts, or to avoid debts. It, looks away from these, not as favoring them, but to the paramount object, of establishing homesteads.

Our attention has been called to decisions, in two or three ¡sister States, where the homestead has been sustained, as against torts, and we know of no decision to the contrary.

No Error. Affirmed.