Dellinger v. Tweed

• Decision Date: 31 January 1872
• Citation: 66 N.C. 206
• Court: North Carolina Supreme Court
• Parties: L. H. DELLINGER, v. A. G. TWEED.

66 N.C. 206

L. H. DELLINGER,

v.A. G. TWEED.

Supreme Court of North Carolina.

January Term, 1872.

A homestead and personal property exemption, under Art. X, of the Constitution and the laws passed in pursuance thereof, cannot be sold under an execution, issued upon a judgment rendered, in an action ex delicto.

PEARSON, C. J., dissentientibus.

This was a civil action, tried on complaint and demurrer, before His Honor, Judge Cloud, at Fall Term 1870, of the Superior Court of Yancey.

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

Battle & Sons and Malone, for the plaintiff .

Ovide Dupreé and Batchelor, for the defendant .

The Court took an advisari until June Term, 1871, when the cause was again argued.

Malone for the plaintiff.

I. The homestead exemption is a privilege, and in analogy to the privilege of infancy, coverture and the like cannot be maintained against tort.

II. It was held in Smith v. Owens, 17 Wis., 395, that the word “liability” secures a homestead as against tort, as it curtails the meaning of the word ““““debt.”

He also cited State v. Melogue, 9 Ind., 196.

Battle & Sons, for the plaintiff, filed the following brief:

1. In the interpretation of Constitutions we are to presume that words have been employed in their natural and ordinary meaning. Cooley, C. L. 58 and 59.

2. The common law to be kept in view. Ibid, 60-61.

3. The same word to be understood in the same sense throughout. Ibid, 62.

Compare with Art. X, secs. 1 and 2. Art. I, secs. 6 and 16. Art. V, secs. 4 and 5. Art. VII, secs. 7 and 13. Art. VIII, sec. 4.

4. The word debt in the Constitution understood by the General Assembly, which put the instrument into operation, in the restricted sense. Compare with sec. 16, Art. I, of the Constitution, sec. 149, Code Civil Procedure. Compare also, secs. 1 and 26, chap. 59, Revised Code. Words Debt and Damages used. Also, chap. 45, secs. 7 and 8; also chap 61, sec. 3, and chaps. 63??and 64, Acts of 1866-'67, and Acts of 1858-'69, chap. 38.

5. Definition of Debt, in Blackstone, is in Book 3, p. 154, specific and restricted, in Book 2, p. 464.

6. The purpose of the Homestead exemption was to afford relief to the people of the State, then heavily in debt. The Legislature had been attempting to do the same thing, but was met, by Constitutional difficulties. See acts of 1866-' 67, above, above and the several stay-laws.

Cooley, 65.

W. H. Bailey, having a similar case, appeared by courtesy, on the same side:

I. If homesteads are exempt from execution in actions ex delicto, the words, “issued for the collection of any debt,” have no value. Lopp them off and the words left cover any execution, beyond all doubt. When added, therefore, it could not be to explain but to qualify.

II. In statutes, words are to be taken in their ordinary sense, and that sense had been well established by distinctions in General Orders, Stay-Laws, &c.

III. The history of the passage of Art. X: As first drafted it read, after the words as they now are, “ contracted after the adoption of this Constitution.” Con. Jour., 278: On 2nd reading, delegate Graham, of Orange, proposed an amendment, i. e., “that the General Assembly shall provide by law for the exemption, from sale, under execution, or other process, of a homestead,” rejected, 33 to 61. See Jour., 283: On 3d reading, Mr. G. proposed to strike out the words, “issued for the collection of any debt,” which was rejected--p. 347.

IV. The Art. X, &c., are, in pari materia, and, to a great extent, follow the language and provisions, of the former homestead laws, 1858-'59 and 1866-' 67, with this noticeable difference, viz: the Act of '58, provided that the homestead should not be subject to execution, “for any debt contracted, or, cause of action, arising, after the same is registered;” the Act of '67, enacts, “shall not be subject to execution, for any debt, contracted, or cause of action, or, other liability,” &c., General Order No. 10, makes the exception universal. Yet with this previous legislation, the Convention restricted the exemption “issued for the collection of any debt contracted after,”--a tort contracted! Used inadvertently? The word “debt” was called to their attention four times, pp. 280, 283, 349.

V. The Acts of 1868 and 1868-'69, follow in the rut cut by the Convention, and are legislative contemporaneous constructions. Hedgecock v. Davis, 64, N. C., and in these acts the words “creditor” and “debtor” repeatedly occur.

VI. Analogies--construction of statutes to the effect that tort is not embraced by the term debt. Insolvent debtors act, Woolard v. Dean, 2 D. and B, 490: Attachment law (R. S.) Minga v. Zollicoffer, 1 Ired., 178: Removal of debtors, Booe v. Wilson, 1 Jones, 182: 13th Eliz., Worth v. Norcom, 4 Ired., 202: Justices jurisdiction, State v. Alexander, 4 Hawks, 182: Clarke v. Dupree, 2 Dev., 411. Bankrupt's estate. It cannot be proved--this is familiar learning.

VII. Contemporaneous legislation favorable to punishment of torts. Stay-laws did not embrace them. Slight trespasses were made indictable.

VIII. Decisions, in other States, on similar enactments: Lathrop v. Singer, 39, Barb. ( N. Y.) 396: State v. Melogue, 9, Ind., 196: Davis v. Henson, 29, Ga., 345: 1, Wash. R. P., 353.

Batchelor and Dupreé for the defendant.

The Conrt took another advisari, when, at the present term, the following opinions were delivered.

READE, 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 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 a judgment. So that, instead of reading the Constitution as it is, “shall be exempted from sale under execution, or other final process, obtained any...