In re Shipman

21 F. Cas. 1314, 2 Hughes 227

Opinion

BOND, Circuit Judge.

This is a motion on the part of creditors to set aside an application for the allowance of a homestead exemption out of property incumbered by judgments upon debts created antecedent to the adoption of the constitution of North Carolina, which provides for that exemption. It seems to me that this application is similar to that in Gunn v. Barry, 15 Wall [82 U. S.] 610, which was made under a like provision in the constitution of Georgia, and which the supreme court declared with some emphasis could not be allowed; and it is precisely the Case of Dillard [Case No. 3,912], decided in the Eastern district of Virginia. The act of congress of March 8, 1873, which was passed, as is maintained at bar, to overrule the decision of Gunn v. Barry [supra], and to make the homestead exemption paramount to the. liens of antecedent judgments, was. by the same court, Chief Justice Waite delivering the opinion, in Deckert’s Case [Case No. 3,728], declared to be unconstitutional. The application on the part of the bankrupt must be refused, and the motion to set aside granted.