Chambliss v. Phelps

McCay, J. The Constitutionality of the Homestead Law, which is one of the points made in this case, is discussed and decided in the case of Downer vs. Hardeman, decided at this terna of the Court, and for the reasons there given we made the same decision in this case. 1. It is one of the express exceptions in the Homestead provision of the Constitution, that the Courts shall have jurisdiction to enforce against the homestead, when set apart, a judgment founded on a debt contracted for the purchase-money. See Article VII, section 1, Constitution of 1868. This is no personal privilege of the vendor of the land, but according to the express language of the Constitution, it is a privilege of the contradi, and goes with it, like the other privileges, into whosever hands it may fall. It is admitted that the judgment of Phelps is founded on a debt contracted for the purchase-money. . We hold, therefore, that it may be levied on the property of which it is the consideration, even though it be set off as a homestead to the family of the debtor. 2. Under the decision we have made in the case of Battle vs. Shivers, at this term, the fi. fa. of Phelps is undoubtedly dormant, but, as is manifest from the reasoning in that case, it is still a judgment, as against the defendant; it has every quality of a judgment, except that it cannot be levied until he has had an opportunity to show that it has been satisfied. It is a dormant, sleeping judgment, and must be revived by scire facias before it can proceed to levy and sale. By section 2863 of the Code, it must be revived in three years after it becomes dormant, or it cannot be revived or sued on afterwards. It becomes dead.- 3. By the Act of 1856 it was presumed to be satisfied if allowed to go seven years without an entry, but as we have [389] hold in Battle vs. Shivers, that was a Statute of Limitations, and was suspended by various Acts, until it was suspended by the Code. The provision in the Code limiting seire facias and actions upon judgments to three years after they become dormant, is a provision to limit the time within which proceedings shall be commenced in a court of justice, and it is clearly also a Statute of Limitations, and was also suspended by these Acts until the “complete restoration of civil government in this State.” Convention of 1868. We held in a case at this term, of Daniel vs. Foster, that civil government was practically restored on the 22d of July, 1868, and this judgment is a judgment, a record evidence of a debt, until barred. 4. We do not however agree with the Court in holding that because the homestead is subject to this judgment, after proper steps are taken to put it in active shape, that the homestead can not be laid off. The Constitution of 1868, Art. “Homestead,” expressly provides that such a judgment may proceed against the homestead, though laid off. The issue allowed to be made up by the Acts of 1868 and 1869, is whether the applicant is such a person as is entitled to a homestead, and whether it is properly and fairly laid off, etc., etc. When laid off, if the debt sought to be enforced is a judgment founded on a debt contracted for any of the exceptions mentioned, then the homestead is subject to such udgment. We therefore reverse the judgment in this case on the ground that the existence of this debt, though it is one of the exceptions, is not any reason why the homestead should not be laid off; and on the further ground, that the mortgage mentioned in the order is not one of the exceptions' of the Homestead Act. . 5. As to mortgage, we will in this case only say, that it is not one of the exceptions. Were the Homestead Law a mere Legislative Act, we would doubt much if, secured as the right to sell is by eontrad, it was in the power of the Legislature so to legislate as to take away this express remedy secured by the contract of the parties. But for the reasons given in Hardeman vs. Downer, we hold that the Constitu [390] tion of 1868 was made under such circumstances that if this is a violation of the obligation of the contract, it is a violalation that it was in the power of the authority which made that Constitution to commit, and t!iat at any rate it is an evil not in the power of the judiciary department of the Government, State or National, to cure. Judgment reversed.