White v. Owen
| Decision Date | 14 March 1878 |
| Citation | 71 Va. 43 |
| Court | Virginia Supreme Court |
| Parties | WHITE v. OWEN & als. |
1. 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 the said property may be subjected to satisfy the debt.
2. Quæ re : Whether a deed of trust by the husband, in which his wife did not join, would have priority to the homestead exemption.
This was a suit in equity in the circuit court of Mecklenburg county, brought in March, 1865, by R. T. Owen to enforce a judgment which he had recovered against Luther Pixley, by subjecting certain real estate which Pixley and wife had conveyed in trust to secure a debt due to W. T. White. It appeared that by deed dated the 9th of June, 1874, Pixley set aside certain personal property valued at $816, and so much of his real estate, which consisted of a house and lot, as would make up the sum of $2,000 as his homestead exemption. And by deed bearing date the 1st of August, 1874, Pixley and his wife conveyed to William E. Homes the said house and lot and all the personal property mentioned in his deed of homestead, in trust to secure a debt of $2,888.97 to W. T White. The bill charged that this deed was fraudulent and the debt usurious; and if it was not, the plaintiff insisted that White should be required to go against the property embraced in the deed of homestead so as to enable him to have satisfaction of his judgment out of the real estate. White and Pixley denied the fraud and the usury, and upon the hearing the court held the charge was not sustained; and there was no appeal from that part of the decree.
Pending the cause Pixley filed his petition claiming his homestead exemption as against the deed to secure White. And the cause coming on to be heard on the 6th of December, 1876, the court held that the deed of homestead was entitled to preference over the deed of trust to Homes, and this deed being prior in date to the judgment of Owen, was entitled to priority over it; and a commissioner was appointed to sell the house and lot, and certain accounts ordered. And thereupon White applied to this court for an appeal; which was allowed.
William J. Robertson, for the appellant.
Edgar Allan, for the appellee.
Luther Pixley, one of the appellees, on the 9th day of June, 1874, executed his deed of homestead, setting apart certain personal property which he valued at $816, and claiming the residue of what he was entitled to under the homestead law out of his hotel situate in Clarksville, which he valued at $3,000, which deed was afterwards, on the 11th of June, admitted to record.
Afterwards, on the 1st of August, 1874, the said Luther Pixley and Nannie, his wife, united in a deed conveying in trust to W. E. Homes, trustee, to secure a debt due from the said Luther Pixley to W. T. White by bond for $2,888.97, with interest thereon from the 1st of September, 1874, till paid, and also " a further amount to said White, not now recollected," the said hotel in the town of Clarksville, with all of the real estate thereto attached; also all of his personal property " except what is known as the poor debtor's exemption under the laws of 1860." The personal property is specified, and embraces all that is contained in his homestead deed, and likewise all of the real estate.
At the September term, 1874, of the Mecklenburg circuit court, T. R. Owen obtained a judgment against George A. Reardon and Luther Pixley for $612.50, with interest and costs, and subsequently brought his bill in chancery to set aside the said deed of trust as usurious and fraudulent, and to subject the property conveyed by it to the satisfaction of his judgment, making Pixley and wife, Homes and White parties defendant. Pixley, White and Homes answered severally, and each of them denied the allegations of fraud and usury. Afterwards the deposition of Pixley was taken by the plaintiff Owen to contradict his answer, but it is unsupported by any other witness, and is contradicted by the depositions of Homes and White, the former of whom does not appear to have any interest. The allegations of fraud and usury are not sustained by the proofs in the cause, nor by the decree of the court, and there is no appeal from the decree on that ground.
But a petition was filed in the cause by Luther Pixley, setting up his homestead deed aforesaid, and claiming the full benefit of it, both against Owen's judgment and W. T. White's deed of trust. And the court held by its decree of the 6th of December, 1876, that the deed of homestead is entitled to precedence over the said deed of trust, and that the deed of trust preceding in date is entitled to priority over the judgment in favor of plaintiff. From so much of said decree as gave precedence to the homestead deed over the deed of trust, this appeal was taken by W. T. White and W. E. Homes, the trustee, and it presents the question for the decision of this court: Can property which has been set apart by a householder and head of a family, by his deed of homestead, duly recorded, be subjected by his subsequent deed of trust, his wife uniting therein, to the payment of his debts? In other words, is property, after it has been so set apart, exempted by the constitution of this state from sale under the deed of trust? This question can only be determined by a right understanding of Article XI of that instrument.
To construe this article aright, it will not do to assume that the framers of the constitution had an object in view in the homestead provision, or ought to have had, which the language they employ does not impart, and then to supply terms to attain the supposed or desired object. Thus whilst it plainly appears that it was their purpose to enable the householder or head of a family to set apart and hold such portion of his property as does not exceed $2,000 in value, exempt from execution or other legal process, if there is no language employed conveying the idea that it should be so held by him as to be thereafter exempt from sale or incumbrance by his own act, we cannot assume that such was the intention of the framers of the constitution, even though we should think it was proper and reasonable to have imposed such a restriction upon his right to dispose of his property by his own act, or because we can see no good reason why the constitution should authorize the householder to exempt his property from execution, and allow him the unrestricted right of disposing of it by his own act. They may have had reasons for the distinction which were satisfactory to themselves, though not satisfactory to us. We cannot be responsible for the reasons which influenced the framers of the constitution; nor is it incumbent on us to show that in proposing one object, as for instance the exemption of the debtor's property, or a part of it, from sale under execution or other legal process, that the other object, to leave the owner unrestricted in his right to dispose of it by his own act, was not inconsistent or unreasonable.
But whilst I hold these to be sound principles of construction, I do not think that there is anything unreasonable or inconsistent in the object and intention of the framers of this article to authorize the householder or head of a family to set apart and hold his property, or a part of it, exempt from sale under execution or other process, and at the same time to leave him the unrestricted right of disposing of it by his own act.
Let us now, by an inspection of the article, ascertain from its language what was the intention of its framers. Though it may be a labor barren of interest and attractiveness, yet it seems to be necessary. Section 1 provides that every householder or head of a family shall be entitled to hold his property, to be selected by him, not exceeding the value of $2,000, in addition to what is exempted by the poor laws, " exempt from levy, seizure, garnisheeing, or sale under any execution, order or other process." 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. If he chooses he may hold it exempt. He cannot be compelled to do it. There is no power vested in his wife or children, or other member of his family, to require him to hold it exempt.
He shall be entitled to hold exempt. Not his wife or children shall be " " entitled," but he personally. It is a discretion or privilege wholly conferred on him.
And it does not entitle him to hold it exempt in general, but only from sale under any execution, order or other process. It evidently has reference to sales by judicial procedure, or under legal process, as contradistinguished from sales by his own act, as by mortgage, deed of trust, pledge, or other security created by his own act.
This is made plain by section 3, where it is expressly declared that " nothing contained in this article (in no section of it, nor in all the sections taken...
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