Kelly v. Stephens

Warner, J. The facts in this case are, that in the year 1859, one Harrison had a judgment against Kelly, who was the owner of a tract of land in Hart county. Harrison was about to levy his execution on Kelly’s land in satisfaction of his judgment, when Kelly, the defendant in fi. fa., borrowed of Thomas W. Thomas the money to pay off said execution in satisfaction of the judgment, and executed his note to Thomas, as well as a mortgage upon the land, to secure the payment thereof. Subsequently Thomas W. Thomas assigned the note and mortgage to James Thomas, the plaintiff’s testator, who foreclosed the mortgage, and levied the mortgage fi. fa. on the land to satisfy the same. Kelly had a homestead laid off on the land, as provided by the Constitution of 1868, and the Act of the Legislature enacted to carry into effect that provision of the Constitution, and claimed that his land was exempt from sale under the provisions of the Plomestead Act. On the trial of the case in the Court below, the Court charged the jury, “that the Constitution of 1868, and the Homestead Act passed under it, could not withdraw said land from the lien of such pre-existing mortgage.” This charge of the Court is assigned as error. This Court is unanimous in its judgment affirming the [468] judgment of the Court below, but for different reasons. I shall state my own reasons only for affirming the judgment. First, because the Homestead Act is unconstitutional and void as against the defendant’s prior contracts, for the reasons stated in my dissenting opinion in the case of Hardeman vs. Downer, decided during the present term of the Court. Second, if the Homestead Act was constitutional as to prior contracts, the plaintiff’s mortgage created an “incumbrance” upon the land which the defendant is bound to discharge before he is entitled to his homestead in the land under that Act. What is an incumbrance ? Webster defines an encumbrance to be “ a legal claim on an estate for the discharge of which the estate is liable.” Bouvier defines an incumbrance to be “ An embarrassment of an estate or property so that it cannot be disposed of without being subject to it. A mortgage, a judgment, a lien for taxes, are examples of incumbrances.” 1st Bouvier’s Law Dictionary, 513. The fourth section of the Revised Code declares the rule that shall govern the construction of all statutory enactments in this State. First. “The ordinary signification shall be applied to all words except words of art, or connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject matter.” Now if we construe the word “ incumbrances,” as used in the Constitution providing for a homestead, either in its ordinary signification as defined by Webster, or according to its legal definition as defined by Bouvier, it will include mortgages and judgments, for mortgages are liens created upon the land by the act of the parties, and judgments are liens created upon the land by law, and both are “incumbrances,” for the discharge of which the land is liable. If the mortgage or judgment is an incumbrance upon the land at the time of setting apart the homestead, then it may be enforced, for the removal of “ incumbrances ” constitutes one of the exceptions. The plaintiff’s mortgage in this case being an incumbrance upon the land, before and at the time the homestead was set apart, he had [469] the legal right to enforce it under the provisions of the Homestead Act. I am aware that a majority of this Court, in the case of Chambliss vs. Phelps, decided during the present term, held, that the Court had no jurisdiction to enforce an execution issued upon a judgment to foreclose a mortgage made before the adoption of the Constitution of 1868, against the homestead claimed by Chambliss. Having dissented from the judgment of the Court in that case, I have not been able to perceive any difference in principle, between Phelps’ legal right to enforce his mortgage against Chambliss’ homestead, and the plaintiff’s legal right to enforce his mortgage against Kelly’s homestead, in this case. Both mortgages were executed prior to the adoption of the Constititution of 1868, and both were incumbrances on the land claimed as a homstead. As I understand the ruling of the majority of the Court in the case of Chambliss vs. Phelps, if Harrison had retained his judgment lien in full force upon Kelly’s land up to this time, he could not have enforced it against Kelly’s homestead, and if Harrison could not now enforce his judgment lien against Kelly’s homestead, if he had continued to hold it, in what better condition is Thomas W. Thomas, and those claiming under him, than Harrison would have been ? Kelly borrowed the money from Thomas, paid off Harrison’s judgment, gave his note for the money, and executed a mortgage on the land to Thomas. Thomas, and those claiming under him, certainly have no higher or stronger legal or equitable claim to enforce their lien or incumbrance than Harrison, to whose rights they were subrogated. In fact, the incumbrance taken by Thomas on Kelly’s land was inferior in dignity to that held by Harrison on his land, and yet the majority of the Court held, that Harrison could not have enforced his incumbrance against the homestead, nor can Phelps enforce his incumbrance against the homestead, but that the plaintiffs in this case oan enforce their mortgage incumbrance against Kelly’s homestead; which ruling, in my judgment, is right, but I cannot see any difference in principle between Phelps and Chambliss, and this ease. Both were incumbrances [470] created by the mortgage on the land claimed as a homestead prior to the adoption of the Constitution, and both ought to be discharged as incumbrances thereon. Let the judgment of the Court below be affirmed.