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

PEARSON, C. J., and RODMAN, J., dissentientibus. The complaint alleges, in substance, that the plaintiff had recovered judgment in an action for defamation against one, McPeters, in the Superior Court of Yancey county, at Spring Term 1869; that he caused execution to issue thereon, and, to be placed into the hands of the defendant, the Sheriff of Madison county, with a notification that the same was issued upon a judgment in a case of slander; that, notwithstanding, the said Sheriff had summoned appraisers, and caused a homestead to be laid off to McPeters, and returned that fact and nihil ultra: that McPeters had property amply sufficient to satisfy said execution, which the Sheriff neglects and refuses to sell — and then demands judgment. c. To this complaint a demurrer was interposed, general in character, special in form. His Honor, on consideration, rendered judgment in favor of the defendant, and, the plaintiff appealed. The appeal was argued at January Term 1871, by 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 yet, that it violates public policy — for it is in universal favor — but, 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 here 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 of the Constitution was to defeat creditors, it was a wicked purpose, and in conflict 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 has 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 the way, they must "go by the board," 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 under execution at all, yet, it may be sold under an execution obtained on a tort, or on damages.

To this it is answered, that if the language of the Constitution, is to be understood in the technical sense of the term used, then there is no homestead exemption at all; for it was never known that an execution issued, or was obtained upon a debt, or upon a contract, or upon a tort, or upon damages. An execution, in all cases, issues or is obtained upon ajudgment. So that, instead of reading the Constitution as it is, "shall be exempted from sale under execution, or other final process, obtained any debt," we must read it as it must necessarily mean, to make sense, "shall be exempted from sale under execution obtained on any judgment." 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 be sold under execution at all, except in the cases named in the Constitution. But then, it is asked, if the Constitution means 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 execution was to issue, as well it might be, because an execution cannot issue except upon a 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.