Hirsch v. Prescott

89 F. 52, 4 Hughes 436, 1881 U.S. App. LEXIS 2662

• Court: U.S. Circuit Court for the District of Eastern Virginia
• Decided: October 4, 1881
• Status: Published

Opinion

HUGHES, District Judge.

The statute law of Virginia does not seem to give the courts any power to intercept from the householder or head of a family, who originally claims a homestead, the property or money exempted to him, but, in prescribing the manner and conditions of holding the homestead, has wholly omitted such a provision. I doubt the power of any court, in the silence of the statute law, to embark upon a system of judicial legislation to supply what seems an intentional omission of the legislature. I think it would be quite unseemly in a federal court to do so. The legislature of Virginia, in giving to the head of a family power to waive the homestead, and in wholly omitting to provide that, or how, it shall, if personalty or money, be tied up in his hands, for the benefit of succeeding beneficiaries of the exemption, and finally of creditors, has seemed to have intentionally constituted it a fee in his hands, and to have left it subject to his will.

Til Ike present case it is wholly unnecessary for the federal court to interfere in the matter. It is just as competent for the creditors to petition for the action they desire in the proper state court as in this; and I will leave them, if they have any remedy, to pursue it there.