Linkenhoker's Heirs v. Detrick

• Decision Date: 24 September 1885
• Parties: LINKENHOKER'S HEIRS v. DETRICK AND ALS.
• Court: Virginia Supreme Court

81 Va. 44

LINKENHOKER'S HEIRS v. DETRICK AND ALS.

Supreme Court of Appeals of Virginia.

September 24, 1885

Appeal from decree of circuit court of Botetourt county, rendered 28th October, 1882, in the cause of J. R. Linkenhoker's administrator against J. R. Linkenhoker's heirs and als.

The object of the suit was to have an account of the assets and of the debts due from the decedent's estate, and to settle the same in full.

J. R Linkenhoker had filed and recorded his deed setting apart a tract of land and other property as his homestead exemption in 1871. After that he had executed his bonds to L. F Detrick and others, waving his homestead as to the same. Without subjecting this homestead the estate was inadequate to the payment of these debts. The circuit court decided that the homestead exemption could not protect the property set apart thereby from sale to pay these debts. From this decree the decedent's heirs appealed to this court and obtained a writ of supersedeas.

G W. & L. C. Hansbrough, for the appellants.

Though article eleven, section one, of the constitution of this State, and the act of June 27th, 1870, ch. 157 (Code of 1873 ch. 183), have been before this court for interpretation a number of times, and several questions of importance arising under them have been decided, yet the question which arises in this case has never been decided by this court.

The homestead cases decided in 1872, 22 Gratt. 266, settled that said article and act are in conflict with article eight section ten, of the constitution of the United States so far as they apply to debts contracted before the Virginia constitution went into operation.

In Reed v. Union Bank, 29 Gratt. 719, this court held that section three of said ch. 183, which authorizes the waiver of the homestead exemption, is not in conflict with said eleventh article of the constitution, and that if a party executing his bond or note waived his homestead exemption as to his bond or note before setting apart the property, neither he nor his wife can set up his homestead exemption as against said bond or note.

In White v. Owen, 30 Gratt. 43, this court held that a deed of trust to secure a debt, executed by the grantor and his wife conveying real and personal property which had been previously set apart by the husband as his homestead, has priority over the homestead exemption, and that the said property may be subjected to satisfy the debt.

Plain authority for the decision was close at hand in section seven of ch. 183, where it is said: " A homestead so set apart or purchased shall not be mortgaged, encumbered, or aliened by the owner if a married man, except by the joint deed of himself and wife, executed and acknowledged after the manner of conveyances of lands of a married woman."

The learned judge pronouncing the opinion in that case, asks the question: " Can property which has been set apart by a householder and head of a family be mortgaged, encumbered, or aliened by his subsequent deed of trust, his wife uniting therein, to the payment of his debts?" And he proceeds to construe the said eleventh article. He says: " It does not declare that his property shall be exempt absolutely, as by the laws known as ‘ the poor laws.’ But he shall be entitled, not required, to hold it exempt. There is no power vested in his wife or children, or other member of his family, to require him to hold it exempt. * * * It is a discretion or privilege wholly conferred on him."

This is the dry, technical argument favoring the constitutionality of the act authorizing a waiver of the homestead exemption, and applies forcibly enough (although it does certainly tend to impair and defeat the intent of article eleven) to a waiver made before setting apart the exempted property. But such an argument can have no application to a waiver made after the householder had exercised his discretion, had set apart the homestead exemption, and had vested in himself and family a new estate, " an estate of homestead," created under section five of said article eleven, " a sort of joint tenancy, with the right of survivorship between husband and wife, which estate cannot be altered or destroyed, except by the concurrence of both, in the manner provided by law." How, and how alone, such new estate of homestead, created by a married man, under the constitution and laws of Virginia, may be mortgaged, encumbered, or aliened (that is " altered or destroyed," or affected in any manner ), is prescribed by section seven, chapter 184, which was enacted under section five of article eleven, and prescribes that it shall not be done except by the joint deed of husband and wife, & c. In speaking of this seventh section, the same learned judge in White v. Owen, says: " This provision seems to be designed to protect the wife against alienations or encumbrances by the husband against her consent." And yet a little further on he appears to intimate (with the avidity some constantly manifest to defeat or impair this beneficent constitutional provision) that he thought the wife's concurrence unnecessary; whereupon Moncure P. and Staples J. were prompt to say such question did not arise in the case, and to disavow the opinion expressed.

In Shipe, Cloud & Co., v. Repass, 28 Gratt. p. 733, Staples, J., says: " No one can look into the provision of our constitution and the adjudicated cases of other States, and fail to see that the primary object is to provide for the family." We quote this saying of Staples, J., to offset the saying of Christian, J., in Reed v. Union Bank, 29 Gratt. 735, where he rejects as authority the decisions of other States which hold there can be no waiver of the homestead exemption, and gives as the reason for such rejection that the constitutions of those States provide either that the homestead " shall be exempt, " or that " there shall be no waiver, " or that the homestead shall be % 7F‘ for the sole use of the family. " Article eleven, section five, Virginia constitution, says: " For the benefit of himself and family, " which words Judge Staples declared, plainly showed " that the primary object was to provide for the family. " Now, then, if the words " for the sole use of the family," create vested rights in the family, which the householder cannot waive or defeat, will not the words " for the benefit of himself and family," equally create vested rights in the family, which the householder cannot, acting solus, waive or defeat? The former words create interests vested solely in the family. The latter words create in the husband and in the family, jointly, vested interests. In fact, the deed of declaration of the homestead exemption creates a new estate, a sort of joint tenancy, with the right of survivorship as between husband and wife. We cannot better illustrate our idea than by a full quotation from the opinion of the Supreme Court of California, in Taylor v. Hargous, 4 Cal. 268, to-wit: " As soon as property acquires the character of homestead, the nature of the estate becomes changed, without reference to the manner in which the title to the property originated, whether it was the separate estate of either husband or wife or the common property of both. It is turned into a sort of joint tenancy with the right of survivorship, at least as between husband and wife, and this estate cannot be altered or destroyed, except by the concurrence of both, in the manner provided by law." Now, whatever may be the character of the homestead exemption before it is set apart, which is defined by the adjudged cases of this State as a mere privilege which the householder may exercise, or may waive at his pleasure, yet, after the householder shall, under section five, article eleven, and the act enacted under it, have set apart property to hold as the homestead exemption for the benefit of himself and of his family, then a sort of an estate immediately becomes vested in the family, jointly with himself, which cannot be divested except by the joint deed of himself and his wife. This reasoning then precludes the idea that under the said eleventh article of the constitution, the legislature could, without impairing and defeating the benefits intended to be conferred by the provisions of said article, empower a waiver in a bond, & c., by the husband alone, of the homestead exemption, to render property previously set apart as exempt by him, liable for such debt under legal process. Hence, in so far as the third section of chapter 183, Code 1873, makes such waiver good against a homestead exemption previously set apart, we submit, with confidence, that it is unconstitutional and void. It impairs and defeats a homestead already created and perfected, and divests and defeats permanently vested rights.

We have ventured to say that in Reed v. Union Bank supra, this court, on purely technical grounds, on the phraseology, perhaps the inadvertent phraseology of the section one of article eleven, on the words " " entitled to hold exempt," instead of " shall hold exempt," has decided that section three of chapter 183, is within the purview of said article so far as it authorizes a debtor solely, in executing a note, to waive prospectively his right to claim the benefit of the homestead exemption not previously set apart. That is one thing. " It is a mere waiver of the debtor's own personal privilege," says the court. But it is quite a different thing to decide that said section three is within the purview of said article, so far as it authorizes a debtor solely, in executing a note, to waive retrospectively the homestead exemption which, by a duly recorded deed, he has previously declared he holds for the benefit of himself and his family. That would be to enable the debtor ex post facto to impair and defeat...