In re Peebles

19 F. Cas. 94, 2 Hughes 394

• Court: District Court, E.D. Virginia
• Decided: June 15, 1875
• Status: Published

Opinion

HUGHES. District Judge.

The only question arising on the branch of the case now before me is, whether the bankrupt’s elaim of exemption in lieu of homestead is good against an execution lien, where the levy was not made until after the adjudication in bankruptcy. As the levy after that time was void, see Bump, Bankr. (9th Ed.) p. 217, and cases there cited (the estate of the bankrupt having passed into the custody of the federal court bound by liens, but free from all interference by the officers of other courts), the more direct question is, whether the homestead is good in this case against, the lien of an execution. This question must be decided upon the laws of Virginia, for the homestead is given by the national bankruptcy law only in cases where it is given by the law of each state. The constitution of Virginia provides that “every householder or head of a family shall be entitled to hold, exempt from levy, seizure, garnisheeing, or sale under any execution, order, etc., real or personal property not exceeding $2000 in value,” to be selected by himself. It authorizes the legislature to provide how this benefit may be obtained and enjoyed, by any law which “shall not defeat or impair the benefit” of the provision. In pursuance of this authority, the legislature has provided, with some minuteness, the manner in which the benefit shall be claimed and secured in respect to the householder’s real estate; but has not made such explicit special provisions as to personalty, doubtless from the impracticability of doing so. But it has provided, in respect to personalty, in sections 16, 17, c. 183, of the Code, how the householder may, after execution sued out and levied, and even after sale, secure from sale, or after sale, any personalty which he may select and designate as an exemption, to the amount allowed by law. Section 5 of the same chapter of the Code, provides in effect that though this personalty may be subject to the lien of mortgages, deeds of trust, or executions, the “claim of the homestead” shall be good against such “last-named liens.” It seems to me, therefore, to be trifling with the subject to contend, in view and in despite of the express language of section 1, art. 11, of the state constitution, and sections 1, 5, 16, 17, c. 183, of the Code, that the lien of an execution, whether levied or not, certainly when not legally levied, is good against the homestead. Courts, of course, have no more right than private citizens to disregard the statute law of the land, and the arbitrary individual judgment of a judge can be no more rightly exercised against a plainly written and constitutional law than that of a private citizen.

The goods mentioned in the pleadings in this case must be set apart to the bankrupt, notwithstanding the execution lien held by T. L. Johnson. See Payne v. Drewe, 4 East, 523; Angel v. Smith, 9 Ves. 335; Taylor v. Carryl, 20 How. [61 U. S.] 594; Hagan v. Evans, 10 Pet. [35 U. S.] 400; Harmar v. Dennie, 3 Pet. [28 U. S.] 292; Weswall v. Sampson, 14 How. [55 U. S.] 52; Davis v. Anderson [Case No. 3,623].