Hinton, J.,
delivered the opinion of the court.
By deed dated December 11,1871, and duly recorded, James R. Linkenhoker, of the county of Botetourt, declared his intention to set apart and hold as a homestead for the benefit of himself and family, under the provisions of the constitution and laws of this State, certain real estate situated in said county, of the value of $1,700, and certain personal property of value sufficient to make the realty and personalty amount to $2,000.
In the years 1879, 1880 and 1881 Linkenhoker contracted several debts to L. F. Detrick, John S. Reese & Co., and others, by bond or note, wherein he waived the homestead exemption. He died in January, 1882, leaving eight children, the six youngest being infants under twenty-one years of age. He also left two other parcels of land and some other personal property. All together, however, was insufficient to pay his debts.
This suit was then brought to settle his estate, and to subject his realty to sale to pay his debts, and in it the question was raised, whether or not the waiver of his homestead by Linkenhoker, in bonds executed by him since the recording of his homestead deed in 1871, was valid and binding on his estate. And this is the only question we are now called upon to decide; but a determination of it necessarily involves the question of the constitutionality of the third section of chapter 183 of the Code of 1873, which provides that in all cases where [52]*52a debtor or contractor shall declare in the body of the bond, note, or other evidence of the debt or contract, that he waives as to such debt or contract the exemption from liability of the property which he may he entitled to hold as exempt under the provisions of this act, the said property, whether previously set apart or not, shall then be liable to be subjected for such debt or contract, under legal process, in like manner and to the same extent as other estate of said debtor or contractor, &c.
Now, upon the most familiar principles, every statute is presumed to be constitutional, and it is incumbent upon those “ who question its validity to show wherein its invalidity consists.” In the enactment before us we have a legislative construction in respect to the power of the householder to waive his homestead after it has been set apart, and unless, upon an examination of the subject, we shall be satisfied that it is in conflict with some provision of the constitution, it must be sustained.
Now, while the precise question under consideration has not been before this court, yet the matter, in various other aspects, has been the subject of judicial decision in this court and in the circuit court of the United States for the eastern district of Virginia; and as the reasoning of the judges in those cases seems pertinent to this case, and goes far towards establishing the validity of this enactment, we will make a few quotations from their opinions:
In re Solomon (2 Hughes’ R., 164), Waite, Ch. J., said: “The constitution grants the exemption as a privilege to the householder. It declares that he shall be entitled to hold property to be selected by him. No specific property is set apart, but he can select such as he desires to have, and when selected, it is to be set apart. If he fails to select, the process of the law can be executed, and the sale made.” * * * *
The privilege, so far as it is given by the constitution, is [53]*53personal to the householder. The language is, “to be selected by him.” If he neglects to 'act, no one is authorized by the constitution to act in his place. The case is entirely different from what it would have been if it had been declared that certain specific property should not be sold under execution, &c.
In that case the constitution, or a law containing similar provisions, would execute itself. As it would be a part of the public policy of the government to exempt that particular property absolutely from forced sale, its provisions could not be waived. It would be beyond the legal power of an officer to levy upon and sell such property.
Here, says he, however, the policy is not to exempt absolutely, but the householder has a right to claim an exemption. Whether he will make his claim or not is optional with him. If he does not claim, he cannot have; and it is difficult to see why, if he may waive at the time of the sale by refusing to select, he may not before. If he can waive at all it seems to us it follows necessarily that, for a good consideration, he may make such a contract to waive as the courts will enforce.
But it is further provided that nothing in the article of the constitution referred to should be construed to interfere with the sale of the property or any portion of it, by virtue of any mortgage, deed of trust, pledge, or other security thereon. Thus it is made expressly to appear that it was not the intention of the framers of the constitution to prevent the householder from contracting for the sale or incumbrance of the property. He was not required to hold it absolutely for himself and family. It was to remain entirely under his personal control, to be dealt with in such manner as he saw fit. His right to sell or incumber is as distinctly given as his right to select. Now all this was said in a case where the waiver antedated the claim of homestead, but the reasoning is general, and it seems to us to be as applicable to this case as to the one in which it was pronounced.
[54]*54In Reed v. Union Bank of Winchester, 29 Gratt. 719, which was a case in which the waiver antedated the claim of homestead, Christian, J., delivering ‘the unanimous opinion of this court; and, after referring to all the provisions of the constitution bearing upon the case, said: “It is plain that there is in none of these provisions, nor in all combined, any express prohibition of a waiver of the homestead exemption by a householder or head of a family, or any interdiction of the powers of the legislature to provide for such a waiver, or the mode in -which it may be exercised. There being no express prohibition the question is, is there any restriction, by necessary implication, upon the power of the legislature to pass the act in question? I think not. I think the constitution grants the exemption as a privilege to the householder or head of a family. It declares that ‘he shall be entitled to hold’ property to be selected by him. ‘ He shall be entitled to hold ’ plainly means that he may, if he chooses, have the right to hold such property as he may choose to select and set apart as his homestead, not exceeding in value $2,000, &c., * * * exempt from execution, sale,” &c. And he then goes on, after having alluded to the fact that the language was not in the constitution as in the poor debtor’s law, that certain property “ shall be exempt” from levy, &c., which would have made the exemption absolute, to answer the objection which has been so earnestly pressed in this case, namely: that it would defeat the very object and intent of the homestead exemption if the head of the family was allowed to waive the benefit of exemption, or otherwise dispose of property in which his family had the right of homestead. And he then states that in Illinois, New York, Vermont, Minnesota, Michigan, North Carolina, California, Arkansas, and Georgia, their constitutions or statute laws provide either that the homestead “shall be exempt,” or that there “ shall be no waiver,” or that the homestead shall' be “ for the [55]
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Hinton, J.,
delivered the opinion of the court.
By deed dated December 11,1871, and duly recorded, James R. Linkenhoker, of the county of Botetourt, declared his intention to set apart and hold as a homestead for the benefit of himself and family, under the provisions of the constitution and laws of this State, certain real estate situated in said county, of the value of $1,700, and certain personal property of value sufficient to make the realty and personalty amount to $2,000.
In the years 1879, 1880 and 1881 Linkenhoker contracted several debts to L. F. Detrick, John S. Reese & Co., and others, by bond or note, wherein he waived the homestead exemption. He died in January, 1882, leaving eight children, the six youngest being infants under twenty-one years of age. He also left two other parcels of land and some other personal property. All together, however, was insufficient to pay his debts.
This suit was then brought to settle his estate, and to subject his realty to sale to pay his debts, and in it the question was raised, whether or not the waiver of his homestead by Linkenhoker, in bonds executed by him since the recording of his homestead deed in 1871, was valid and binding on his estate. And this is the only question we are now called upon to decide; but a determination of it necessarily involves the question of the constitutionality of the third section of chapter 183 of the Code of 1873, which provides that in all cases where [52]*52a debtor or contractor shall declare in the body of the bond, note, or other evidence of the debt or contract, that he waives as to such debt or contract the exemption from liability of the property which he may he entitled to hold as exempt under the provisions of this act, the said property, whether previously set apart or not, shall then be liable to be subjected for such debt or contract, under legal process, in like manner and to the same extent as other estate of said debtor or contractor, &c.
Now, upon the most familiar principles, every statute is presumed to be constitutional, and it is incumbent upon those “ who question its validity to show wherein its invalidity consists.” In the enactment before us we have a legislative construction in respect to the power of the householder to waive his homestead after it has been set apart, and unless, upon an examination of the subject, we shall be satisfied that it is in conflict with some provision of the constitution, it must be sustained.
Now, while the precise question under consideration has not been before this court, yet the matter, in various other aspects, has been the subject of judicial decision in this court and in the circuit court of the United States for the eastern district of Virginia; and as the reasoning of the judges in those cases seems pertinent to this case, and goes far towards establishing the validity of this enactment, we will make a few quotations from their opinions:
In re Solomon (2 Hughes’ R., 164), Waite, Ch. J., said: “The constitution grants the exemption as a privilege to the householder. It declares that he shall be entitled to hold property to be selected by him. No specific property is set apart, but he can select such as he desires to have, and when selected, it is to be set apart. If he fails to select, the process of the law can be executed, and the sale made.” * * * *
The privilege, so far as it is given by the constitution, is [53]*53personal to the householder. The language is, “to be selected by him.” If he neglects to 'act, no one is authorized by the constitution to act in his place. The case is entirely different from what it would have been if it had been declared that certain specific property should not be sold under execution, &c.
In that case the constitution, or a law containing similar provisions, would execute itself. As it would be a part of the public policy of the government to exempt that particular property absolutely from forced sale, its provisions could not be waived. It would be beyond the legal power of an officer to levy upon and sell such property.
Here, says he, however, the policy is not to exempt absolutely, but the householder has a right to claim an exemption. Whether he will make his claim or not is optional with him. If he does not claim, he cannot have; and it is difficult to see why, if he may waive at the time of the sale by refusing to select, he may not before. If he can waive at all it seems to us it follows necessarily that, for a good consideration, he may make such a contract to waive as the courts will enforce.
But it is further provided that nothing in the article of the constitution referred to should be construed to interfere with the sale of the property or any portion of it, by virtue of any mortgage, deed of trust, pledge, or other security thereon. Thus it is made expressly to appear that it was not the intention of the framers of the constitution to prevent the householder from contracting for the sale or incumbrance of the property. He was not required to hold it absolutely for himself and family. It was to remain entirely under his personal control, to be dealt with in such manner as he saw fit. His right to sell or incumber is as distinctly given as his right to select. Now all this was said in a case where the waiver antedated the claim of homestead, but the reasoning is general, and it seems to us to be as applicable to this case as to the one in which it was pronounced.
[54]*54In Reed v. Union Bank of Winchester, 29 Gratt. 719, which was a case in which the waiver antedated the claim of homestead, Christian, J., delivering ‘the unanimous opinion of this court; and, after referring to all the provisions of the constitution bearing upon the case, said: “It is plain that there is in none of these provisions, nor in all combined, any express prohibition of a waiver of the homestead exemption by a householder or head of a family, or any interdiction of the powers of the legislature to provide for such a waiver, or the mode in -which it may be exercised. There being no express prohibition the question is, is there any restriction, by necessary implication, upon the power of the legislature to pass the act in question? I think not. I think the constitution grants the exemption as a privilege to the householder or head of a family. It declares that ‘he shall be entitled to hold’ property to be selected by him. ‘ He shall be entitled to hold ’ plainly means that he may, if he chooses, have the right to hold such property as he may choose to select and set apart as his homestead, not exceeding in value $2,000, &c., * * * exempt from execution, sale,” &c. And he then goes on, after having alluded to the fact that the language was not in the constitution as in the poor debtor’s law, that certain property “ shall be exempt” from levy, &c., which would have made the exemption absolute, to answer the objection which has been so earnestly pressed in this case, namely: that it would defeat the very object and intent of the homestead exemption if the head of the family was allowed to waive the benefit of exemption, or otherwise dispose of property in which his family had the right of homestead. And he then states that in Illinois, New York, Vermont, Minnesota, Michigan, North Carolina, California, Arkansas, and Georgia, their constitutions or statute laws provide either that the homestead “shall be exempt,” or that there “ shall be no waiver,” or that the homestead shall' be “ for the [55]*55sole use of the family,” and so accounts for the decisions in these States which deny the householder the right to waive his exemption. 29 Gratt. 719.
And in the subsequent case of White v. Owen, 30 Gratt. 43, it was held by all four of the judges who were present that 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 that the property so conveyed in trust may be subjected to satisfy the debt. In this case Anderson, J., argues forcibly to show that the exemption from sale under any execution, order or other process has reference to sales by judicial procedure or under legal process, as contradistinguished from sales by the householder as by mortgage, deed of trust, pledge, or other security created by his own act. He then, in answer to the suggestion that the family have a vested right in the homestead, at least during the life of the householder, says: “I find nothing in this article which shows an intention to divest the householder and head of a family of his property, and of the unrestricted right to dispose of it as he chooses. Nothing, which by express terms or by implication, divests him of his title and vests it in his wife and children, severally or jointly with himself. If, says he, it could be construed to divest him of his property and to vest it in -others, it would operate to vest in persons; if he had no wife or children, who bore to him no such relation—to any who might constitute his family, though not even of his kindred.” Such can hardly be conceived to have been the intention. It is plain that the whole purpose and intent of the article was to enable the owner of the property, if he desired for the benefit of his family, to hold so much of it exempt from execution or other legal process as did not exceed in value $2,000. There is not a syllable or a sentence in the whole article which indicates a [56]*56purpose to deprive the owner of his jus disponendi, or to hold it exempt from seizure and sale except under execution, order or other judicial process. Nor is there in the deed of homestead which he is authorized to make by the act of assembly, pursuant to the fifth section of this article of the constitution. It is not an alienation of his property. It does not divest him of his title and vest it in others. It is merely designed to set apart—to designate—the portions of his property which he claims to hold, under the homestead provision of the constitution, exempt from seizure and sale under any execution, order or other legal process, and to give notice of it to the world.”
I have thus quoted at length from these opinions, not only because they show the reasons which, in the opinion of these courts and judges, influenced the framers of the constitution in allowing the homestead exemption, but because they embody our views on the subject fully as well as we could express them. If they be sound—and we have no doubt of their correctness— it is manifest that the real intention of the framers of the constitution was, as we have before shown, to confer upon the householder or head of a family a personal privilege, of which he might avail himself or not, as his views of the interests of himself and family might dictate; and that they, realizing that whilst it might often be expedient for the householder to set up his claim to this exemption, it might not always be for the benefit of either himself or family to retain it as a homestead, wisely so framed the provision as to prevent his being deprived of the exemption by the various processes of the law, whilst at the same time it left in the householder the absolute right of disposing of it which he enjoyed before the property was set apart. The homestead is a shield to protect the helpless and unfortunate debtor from the importunate and incompassionate creditor—not a millstone to be hanged about the debtor’s neck. If all this be so, it is perfectly clear that it is [57]*57utterly irreconcilable with the idea that there is any estate vested in the family by the mere act of the debtor in setting apart a designated portion of his property and holding it exempt from the process of the law, except in certain enumerated cases, and from the grasp of the creditor, except where the householder, for some consideration deemed by him to be valuable, voluntarily subjects it to incumbrance or sale. Nor can I perceive anything in this ju,s disponendi of the householder—anything which militates against the idea that it is held for the family as well as for the householder, for the effect of the provision is to allow the householder to select and set apart and hold as a homestead certain property so long as, in his discretion, it may be for the benefit of himself and family, and when, in his opinion, it is more for their benefit to do so, to dispose of it. A provision permitting a householder to hold as exempt certain property so long as it may be for the benefit of himself and family is perfectly consistent with one which permits him to retain the right to make sale of the same property when it shall be for the benefit of the family for him to do so; and as the householder, being the head of the family, is of necessity more especially charged with the support and maintenance of its members, it would seem to be peculiarly proper that the power to charge, incumber or make sale of the property should be lodged in him.
It has been argued that as the words “for the sole use of the family” have been construed, in other States, to create vested rights in the family, so the words “for the benefit of himself and family” should receive a like construction. But the ready answer to this suggestion is that the use of words like these, “there shall be no waiver,” or “for the sole use of the family,” exclude the idea that the husband or father has the absolute right of property in the homestead, and shows that it is a part of the public policy of the government to exempt that par[58]*58ticular property absolutely from forced sale, and its provisions could not, therefore, be waived; but in the other case, as we have shown, no such implication can arise.
We find no error in the decree of the circuit court of Botetourt county, and the same must be affirmed.
Decree aeeirmed.