In re Radway

20 F. Cas. 154, 3 Hughes 609

• Court: District Court, E.D. Virginia
• Decided: October 15, 1877
• Status: Published

Opinion

HUGHES, District Judge.

The principal question in the case is whether under the Virginia law the homestead is good against judgments founded on torts. The courts of some of the states, proceeding upon the particular phraseology of the statutes of those states, have held that their homestead statutes did not embrace liabilities upon torts among those over which the exemption should prevail. But I do not think that the case at bar, depending upon the law of Virginia, can be affected by such rulings.

The language of our statute is, that the head of a family shall be entitled to hold, exempt from levy, etc., “on any demahd for any debt heretofore or hereafter contracted,” property not to exceed a certain value. The only question is whether the word “contracted” is used here in’the narrow sense of an express contract formally entered into between two persons, by which at least one of them promises or undertakes semething for a consideration, or whether it contemplates implied contracts, also; for the law raises implied contracts as well upon torts as upon express promises. The words preceding “contracted” in the phrase imply a latitudi-nous intention on the part of. the legislature. This latitudinous intention would have been undeniable if the word “incurred” had been used in the place of “contracted.” But as the word “incur” does not so strictly belong to the technical parlance of lawyers and legislators as the word “contract,” and as the word “contracted” is a synonym of “incurred,” I think we have a right to assume from the broad purport of the preceding words, “any demand on any debt,” that the legislature intended its term “contracted” to be liberally interpreted.

The verb “to contract” has a variety of meanings, viz.: “to shrink; to shorten; to wrinkle, as the brow; to betroth; to acquire. as a habit, or a cold, or a disease; and to incur, as a risk, a debt, an obligation, a penalty, or a disability.” Interpreted in this last sense, of “incur,” it seems to run with the spirit of the words which precede it in the phrase in which it is used; while, by confining it to the narrow and strictly commercial meaning, we make it jar with the liberal tenor of those preceding words. What right, what warrant have we thus to do violence to what seems to be the natural meaning of the language of the legislature? Upon what reason, or rule of statutory construction. can we justify such a rigid, illiberal interpretation of a provision of law, most liberal in its purpose and tenor, as would strip it of half its effect and value? I think we are not only not bound to do so, but that we would not be justified in giving this law such a construction.

Going back to the word “debt,” used in the phrase under discussion, why should we give it a narrow meaning when it appears that “any debt” is intended? A debt is, in law, an obligation to pay money, and the obligation may arise ex contractu or ex delicto. The obligation may be express, ex contractu; or implied, quasi ex contractu. It may arise ex delicto, upon actual tort; or quasi ex de-lieto, apon what the law chooses to treat as a tort. And thus it is plain that a debt or obligation may be contracted as well through a tort committed, as a ^bargain entered into.

Passing now from a philological treatment of the subject, let us consider it from a legal standpoint. The seventh section of article 11 of the Virginia constitution, previous sections of which provide a homestead exemption, is in these words: “The provisions of this article shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out.” By this direction, in our construction, all we have to do is to find what was the “intent thereof,” and then if the provisions of the article can l>e so construed, even though they require a liberal interpretation, they must be “construed” in the sense which will effect the object of this constitutional provision, for so we are directed to do. No restricted sense is to be allowed to words if by so doing the object of the article is in any way defeated, but a broad meaning is to be put on the language used, always looking to the end for which the article was adopted.

Stress is laid by exceptants’ counsel on the fact that a single member of the Virginia convention drafted (for all that we know without the knowledge of the. great majority of the members) the homestead sections in similar terms to those of the New York law. We can’t take cognizance of legislative proceedings, but are obliged to construe laws exclusively by their own terms. But even if we could construe them by extraneous circumstances, does the New York law contain a provision enjoining a “liberal construction?” I think not. No; our own statute must be construed by its own terms — all of its own terms. We have had the “intent” of our homestead provision plainly declared by our highest court. In Hatorff v. Wellford, 27 Grat. 360, 361, Judge Staples, speaking for the court, says the policy of homestead exemptions (this act being under discussion) is two-fold: one political, the other benevolent. Of the benevolent he says: “The possession of the homestead is the security of the family against the improvidence, the follies, the imprudences of the husband and father. ‘Householder' or ‘head of a family’ are the terms pervading these homestead enactments — a home for the destitute and helpless, secure from financial ruin, and the pursuit of creditors.No one can look through these various statutes without at once seeing that ‘protection of the family’ is one of the leading ideas upon which these exemptions are founded.” And on page 363: “It has been held, in Georgia and North Carolina certainly, and probably in other states, that the object of the homestead laws is the security of the debtor and his family against the demands of the creditor.”

It is admitted that C. L. Bad way is a householder, or head of a family, and that he is now, and was when he claimed his homestead, a resident of Virginia. His right to a homestead, however, is contested on two grounds: 1st. That he intends hereafter to remove from the state. 2d. That the Mitchell claims against him arose from torts.

As to the first. The law does not expressly, nor by implication, require the householder to agree to live in Virginia all his life before he can obtain his homestead; and the requirement of this condition by a court would be to ingraft an entirely new provision upon the constitution, which would destroy entirely, in many instances,- the object of the homestead article as it stands.

I cannot appreciate the argument that if his homestead is allowed to Radway and he thereafter leaves the state he will commit a fraud on his creditors. If there was anything in it the argument would apply to every person asking for his homestead.

As to the second ground, in order for it to be tenable the words of the article must be given the strictest and most'technical meaning and the most illiberal construction. Such an illiberal construction would entail difficulties not anticipated. The words of the article are that the person shall "hold exempt from levy, seizure, garnishing, or sale, under any execution, order, or other process, issued on any demand for any debt heretofore or hereafter contracted.” Strictly speaking no execution ever issues on any demand for a debt. It is only after the demand for the debt has become merged in a judgment that execution issues. Indeed a strict construction of the words would exclude judgments, which are not in themselves “debts contracted,” though sometimes founded on debts contracted. Again, if the words “debts contracted” are to be taken in their narrowest meaning, as seems to be claimed, then they describe only debts which are expressly agreed to be paid by the debtor, and all other debts created by implication of law arc excluded. And this is the ground on which it is contended that torts are not included in the words. This narrow construction would exclude from the operation of the homestead law many liabilities other than torts — in fact, all debts for which an express promise to pay cannot be produced. Such was not the intention of the law, else it has failed wofully in the effort to provide “a home for the destitute and helpless, secure from financial ruin and the pursuit of creditors.”

Lot us see what is a liberal construction of the words “debt contracted.” Says Bouvier: “Debt is a sum of money due by certain and express agreement. In a less technical sense, as in the ‘Act to regulate arbitra-tions and proceedings in courts of justice’ of Pennsylvania, passed 21st March, 1S0G, § 5, it means any claim for money. In a still more enlarged sense, it denotes any kind of a just demand, 'as the debts, of a bankrupt.’ One of tbe meanings given in our dictionaries to the word ‘contract,’ as a verb, is ‘to incur.’ So that a ‘debt contracted,’ in an enlarged or literal sense, means ‘any kind of just demand incurred.’ ” We have seen that the words “execution issued on any demand for any debt contracted,” mean execution issued on a judgment, as executions never issue on anything else. When we look to the legal effect of a judgment we find it is a “debt contracted.” Says Blackstone (chapter 9, bk. 3, pp. 158, 159): “From these express contracts the transition is easy to those that are only implied by law, which are such as reason and justice dictate, and which therefore the law presumes that every man has contracted to perform, and upon this presumption makes him answerable to such persons as suffer by his non-performance. Of this nature are, first, such as are necessarily implied by the fundamental constitution of government, to which every man is a contracting party. And thus it is that every person is bound and hath virtually agreed to pay such particular sums of money as are charged on him by the sentence, or assessed by the interpretation of the law.Whatever, therefore, the law orders any one to pay, that becomes instantly a debt which he hath aforehand contracted to pay. ... So that if one hath once obtained a judgment against another for a certain sum .... he may afterwards bring an action of debt upon this judgment, and shall not be put upon the proof of the original cause of action; but upon shewing the judgment once obtained still in full force and yet unsatisfied, the law implies that by the original contract of society the defendant hath contracted a debt and is bound to pay it.”

From this it follows that every judgment, whatever may have been the nature of the action in which it was obtained, is a “debt contracted,” and as the constitution looks to all claims as turned into judgments before they are affected by the homestead provision, which looks to exemption from process of execution upon judgments, all judgments are included in the words “debt contracted.” This is made perfectly plain by looking to the exceptions to the operation of the homestead. If these exceptions had not been included in the words “debt contracted,” in the first part and general provision of the article, there would have been no need to expressly mention them as cases to be excepted from the operation of those words. There are six exceptions, and three of them may, and two of them must, embrace claims put upon the debtor by implication of law, and not by express contract. Services rendered by a laboring man or mechanic, liabilities incurred by a public officer, and rent, may all be charged on a householder without any express contract on his part to pay.

A lawful claim for taxes, levies, or assessments, and the legal or taxable fees of any public officer or officers of a court, are put on the debtor by statute, and not by contract. If they were included, in the words “debt contracted,” as undoubtedly they were, else they would not have been particularly excepted from the debts contracted liable to the claims of homestead, how can it be said that damages recovered in actions of tort, which are likewise put upon the debtor by law, without any express contract, are not embraced in the same words? ³ As another proof that the constitution uses the word “debts” in its largest sense, I refer to section 4 of this article 2: “The general assembly is hereby prohibited from passing any law staying the collection of debts, commonly known as stay laws.” Should the assembly pass a law staying the collection of judgments on tort, that law might with some reason be held not to include a debt in the meaning of this homestead article.

Some stress has been laid in the argument at bar on the fact that one or more of the decisions which have held the homestead good against damages in actions of tort, stated, as one ground of the decision, that the-homestead could not, in the particular case, by reason of statute, be alienated by the-husband, except with the consent of his wife, and, ergo, he should not be permitted to incumber by his tort what he could not alone convey, and it is claimed that our siature is not similar in that respect. But so to hold is to overlook section 7, c. 183, p. 1171, of our Code, in which the joint deed of husband and wife is required to mortgage,, incumber, or alien the homestead set apart in land. I would refer to Dellinger v. Tweed, 66 N. C. 206, to 17 Wis. 395, and to Conroy v. Sullivan, 44 Ill. 451, for decisions sustaining this view as to the validity of' homestead over damages in cases of torts.

The argument that our homestead was the suggestion of a New Yorker, and therefore-must be construed by New York decisions, is entitled to no weight, for the provisions are not identical, and the exceptions, adopted by the convention, themselves show that they understood the terms “debt contracted” in its broadest sense. Such arguments, however, are never more than persuasive, and to be used in default of other and better reasons. The right to the homestead does not depend on the question as to whether the attachments have ceased to be mesne process or not. If final judgment had been obtained, and execution were in the hands of the sheriff on the attachments, as well as on the claim, section 16, e. 183. p. 1173, Code 1S73. provides a way to set apart the homestead, showing that no judgment can be a lien paramount to the claim of homestead.

Much has been eloquently said by the-learned counsel for the Mitchells on the nature of the torts on which they recovered. They cannot he justified or palliated, even if the females were in fault themselves; the cases and their aggravations have been passed upon before the jury, in their, verdict, and the only question here is one purely legal, and we need, for its elucidation, no appeal to the feelings. Mrs. Radway and her child •ask that the tort of the bankrupt shall not strip them of their homestead, which the law gives them secure “from the improvidence, the follies, and imprudences of the husband and father.”

On the whole, I have no hesitation in overruling the exceptions to the register's report, .and will make an order granting the bankrupt’s petition.

3 The use of the word “incurred” in the exceptions. shows that the words “debt contracted” and “debt incurred” are interchangeable terms in this article, and destroys effectually the narrow argument on the word “contracted.”