Mertz v. Berry
| Decision Date | 16 June 1894 |
| Citation | 59 N.W. 445,101 Mich. 32 |
| Court | Michigan Supreme Court |
| Parties | MERTZ v. BERRY. |
Appeal from circuit court, St. Clair county, in chancery; Samuel W Vance, Judge.
Action by Henry Mertz against Thomas A. Berry to set aside a sale of his homestead to satisfy a judgment against him. Judgment for plaintiff, and defendant appeals. Affirmed.
Edwin F. Conely and Orla B. Taylor, for appellant.
Avery Bros. & Walsh, for appellee.
The sole question in this case is whether, under our constitution, the homestead is exempted from levy and sale under an execution issued upon a judgment recovered in an action of tort. The constitution provides (article 16, � 2) that "every homestead, *** shall be exempt from forced sale on execution or any other final process from a court, for any debts contracted after the adoption of this constitution." The statute provides (How. St. � 7721) that "a homestead, *** shall not be subject to forced sale on execution or any other final process from a court, for any debt or debts growing out of, or founded upon contract, either expressed or implied, made after the third day of July, 1848." This statute was, however, passed in 1848, before the adoption of the present constitution. Upon examination of the proceedings of the constitutional convention of 1850, it will be observed that sections 1, 2 and 3 of this article, as first reported, read as follows:
When these sections were under consideration, it was urged that the first section was retrospective in its action; and, to obviate that objection, Mr. Pierce offered the following as an addition thereto: "Issued for the collection of any debt contracted after the adoption of this constitution." Const. Deb. 1850, p. 667. The article was again taken from the table, when a substitute was offered for sections 1, 2, and 3. Thereupon, certain amendments were offered as a substitute for the former substitute, which amendment prevailed. The article was then recommitted, with instructions. The committee immediately reported back the article, "amended agreeably to instructions." The article was then passed, and, under the rule, referred to the committee on arrangement and phraseology. Up to this time, it nowhere appears that section 2 had been amended, or that any instructions had been given respecting amendments thereto, except such as appear on pages 740 and 741, which do not relate to this subject. The committee on arrangement and phraseology reported back the article, and, in their report, the language, "for any debt contracted after the adoption of this constitution," first appeared as substituted for the language, "for any debt thereafter incurred." This would appear to have been done to make the language of the three sections uniform. The subject of exemption was very fully discussed. The retrospective effect of the first section, as it appeared when first reported, was objected to but nowhere was any distinction hinted at between debts founded on contract and those founded in tort; and it affirmatively appears that the language added to the first section was appended for the express purpose of obviating the objection raised. The statutes existing at that time relating to the exemption of personal property exempted the property specified from levy and sale, "under any execution, or upon any other final process of a court." The statute of 1848, relating to real property, above quoted, was clear and explicit, and clearly applies only "to debts growing out of, or founded upon, contract made after," etc. The debates furnish no indication of an intention to make the constitutional provision relating to the exemption of personal property more restrictive than the statutory provisions upon the same subject. Pending the discussion of these sections, which was a protracted one, the second section read, "any debt thereafter incurred;" and, although the section was amended in other particulars, no reference appears to have been made to this language. The word "debt" is one of large import, including debts of record or judgment. Gray v. Bennett, 3 Metc. (Mass.) 522; Insurance Co. v. Meeker, 37 N. J. Law, 301; In re Lambie's Estate, 94 Mich. 489, 54 N.W. 173. A judgment founded in tort is a debt. What, then, is the office of the language which follows the word "debt?" Is it to qualify the word "debt," or, in other words, to indicate what class of debts the exemption was intended to include, or was it used for the purpose of making the act prospective, instead of retrospective? In other words, to limit the operation of the provision to debts afterwards incurred. In view of the history recited, we are inclined to the latter view. The word "contracted" is sometimes used in a broader sense than that contended for by defendant. A disease may be contracted, while not contracted for. The words "liability contracted," etc., have been said to have a broader signification than the words "debt contracted," etc.; but a contract liability is as much a liability growing out of a contract as is a contract debt a debt founded upon contract. In...
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