Nelson v. McCrary

BRICKELL, C. J. It is certainly true that, by the ancient common law, personal estate only could be subject to the payment of debts. The reason was : “That it was only a chattel that was lent, and therefore the chattels of the debtor were liable only to pay it; and formerly men trusted one another no farther than they had visible chattels to answer the debt. The lands were not liable, because they were obliged to answer the duties to the feudal lord; and a new tenant could not be forced upon him, without his consent to the alienation ; and the person was not liable, because that was obliged by the tenure to serve the king in the wars, and the several lords at home, according to the distinct natures of their tenure.” — 3 Bac. Abr. 663. The connection between the lord and the tenure — to secure the former the duties and services the fief bound the latter to render, and to prevent the transfer of these services and duties to another whom the lord had not accepted asa tenant, operated restraints on alienations by the act of the tenant, as well as by the acts of the law. — 3 Black. Com. 419. This doctrine of the common law was never adapted to our condition, or to the nature of the tenure of real estate known to our laws, and was never a part of our jurisprudence. The common law of England is not, in all respects, the common law of this State. It was adopted, and prevails here, only so far as it is consistent with our institutions, and the public policy of the State, as deduced from our legislation.—N. & C. Railroad Company v. Peacock, 25 Ala. 229; Barlow v. Lambert, 28 Ala. 704; Simpson v. State, MSS. The feudal restraints on the alienation of lands, and subjecting them to the payment of the debts of the owner, the growth of commerce compelled legislation in England to remove, long prior to tbe immigration of our ancestors to this continent. The statute of 13th Edw. 1, chap. 18, gave a judgment-creditor a writ of elegit, by which the sheriff was required to extend to him one half the debtor’s lands, to be retained until the debt was satisfied. — 3 Black. Com. 419. The principle is well settled, that English statutes, passed before the emigration of our ancestors, so far as consistent with our institutions and government, unless repealed, constitute a part of the common law prevailing in the States of a common origin.—Carter v. Balfour, 19 Ala. 814; Horton v. Sledge, 29 Ala, 478. If it were a matter of practical import [310] anee, there would be no room for doubt, that this statute was of force during the five years of organized government elapsing before it was in substance re-enacted by the act of 1807, Clay’s Dig. 199, § 1. This was followed by the act of 1812, which subjected lands, tenements, and heriditaments, to levy and sale under execution, for the satisfaction of all judgments or decrees in courts of record; and the clerks of such courts were directed to frame the execution accordingly. Clay’s Dig. 205, § 17. It seems to us, therefore, the assertion of a mere truism, that it is, and has been, the law of this State, to subject lands, equally with personal estate, to the payment of debts ; and it is certainly true that, in the absence of exemption by constitutional or statutory provisions, the law appropriates to the payment of debts any and every beneficial interest of a debtor in property, real or personal, or in its use, whether the interest is legal or equitable, held jointly or in severalty.—Rugely & Harrison v. Robinson, 10 Ala 702. It is on the faith of this principle debts are now contracted, and not, as it is said they were in former times, on the faith of the visible chattels of the debtor. If parties are dealing fairly, the principle is in their contemplation, enters into, and forms part of the contract, as certainly as if it was expressed in terms ; and it cannot be violated, without impairing the obligation of the contract. It is true, the legislature may change, alter, modify, or enlarge existing remedies; or it may abolish old, and substitute new remedies. Legislative power, in this respect, is subject to the restriction, that it cannot take away all remedy for the enforcement of existing contracts, nor substitute for former new remedies which impair the value and benefit of such contracts.—Gunn v. Biddle, 8 Wheat. 92; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; Van Hoffman v. Quincey, 4 Wall. 552; White v. Hart, 13 Wall. 646; Walker v. Whitehead, 16 Wall. 314; Ex parte Pollard, 40 Ala. 77. We can not, therefore, assent to the argument, that the subjection of lands by legal process to the payment of debts is merely statutory — the consequence of statutory remedies —and that without imparing the obligation of contracts the legislature may wholly abrogate the remedy, or narrow it so that the property liable at the time the contract is made is withdrawn from its satisfaction. If the subjection of lands to the payment of debts was dependent wholly on statutory provisions, the statutes having rendered them liable, it would not be competent for the legislature, by a repeal of such statutes, to remove the liability, nor to lessen it, to the prejudice of creditors whose rights had attached. The concession of such power to the legislature involves practically [311] the power to nullify the contract, which the Federal constitution interdicts. The question of chief importance in the present case is, whether the appellant’s homestead exemption is to be meas-. ured and determined by the law in force when the debts on which the judgments rendered against him, for the satisfaction of which the lands were sold under execution, were contracted, or under the subsequent statute of April 23,1873 (Pamph. Acts of 1872-3, p. 64), which was of force when the lands were acquired by the appellant, when the judgments were rendered, and at the sale by the sheriff. In the consideration of this question, the fact that the land was acquired subsequent to the making of the contracts, and after the enactment of the latter statute, is not material. The obligation of a contract is not limited to property which the man may own when he enters into it; nor is there any intendment, or implication, that he shall be discharged when such property is exhausted. In Sturges v. Crowninshield, 4 Wheat. 198, it is said by Oh. J. Marshall: “It is not true that the parties have in view only the property in possession when the contract is formed, or that its obligation does not extend to future acquisitions. Industry, talents, and integrity, constitute a fund, which is as confidently trusted as property itself. Future acquisitions are, therefore, liable for contracts; and to release them from this liability impairs their obligation.” It is only through the agency of insolvent or bankrupt laws, that future acquisitions of a debtor may be relieved from liability for precedent debts. This fact alone distinguishes this- case from numerous cases recently decided in this court, which declare that a debtor’s right of exemption is dependent on the law existing when the contract is made, and that without impairing its obligation subsequent legislation can not enlarge the exemptions of his property.—Miller v, Marx, at the last term; Wilson v. Brown, MSS. These decisions lout follow the decisions of the Supreme Court of the United States, to which obedience is due from all State tribunals, on this and kindred questions.—Gunn v. Barry, 15 Wall. 610; Edwards v. Kearzy (6 Cent. Law Journal, No. 20); Van Hoffman v. Quincey, 4 Wall. 552; White v. Hart, 13 Wall. 646; Walker v. Whitehead, 16 Wall. 314. Before these decisions, the question may have been involved in doubt and uncertainty, by the conflicting decisions of the courts of the several States. It must now be accepted as the law, that the creditor may with confidence repose on the law as it is when he contracts, and learn from it the property which the debtor can claim as exempt, and the property he may through legal remedies condemn to [312] its satisfaction — that while the legislature may modify, it can not deprive him of all remedy, nor, in the regulation of remedies, invade the obligation of the contract as it was made. When these contracts were made, the constitution of 1868 was of force, and limited the homestead to eighty acres of land, and the dwelling-house and appurtenances thereon. The exemption laws existing prior to that constitution were, as to debts contracted subsequent to its adoption, superseded by it. They operated only in reference to debts contracted prior to the constitution, not on subsequent debts.—Miller v. Marx, supra. If they applied to subsequent debts, they would not avail the appellant, for they were repealed by the act of April 23, 1873, long prior to his claim of exemption, and the levy and sale by the sheriff. Exemptions are statutory, or constitutional, and the law conferring them must be of force when they are claimed. A law giving them, which has been repealed, is not, and can not be, revived by a claim under it, though it may have been of force when the contract was made. The act of April 23, 1873, enlarged the homestead exemption to one hundred and sixty acres, including the dwelling and appurtenances. It can not, without a violation of the constitution of the United States, operate on debts contracted prior to its passage. When the sale was made by the sheriff, there was no mode provided for ascertaining and setting apart the homestead of a judgment debtor. The statute (E. O. § 2881) applied only to the assignment of the homestead exempt under the statutes ot which it was a part. It was directory in its terms, and a failure to observe them would have been mere irregularity — ground for an application to vacate the sale, but not the subject of inquiry in an action by a purchaser at a sale by the sheriff for the recovery of the lands. The purchaser could, in such action, recover only the lands which were not exempt, if, prior to the sale, the debtor had selected and claimed the homestead. 1 In the rulings of the Circuit Court, we find no error prejudicial to the appellant. The appellees have introduced into the bill of exceptions, taken by appellant, various exceptions reserved by them on the trial, to the rulings of the court which diminished the recovery they claimed, and, without prosecuting an appeal, have assigned errors on these rulings. There is no rule of practice which authorizes such an assignment.—Leslie v. Langham, 40 Ala. 524; Wright v. Evans, 53 Ala. 103. We have not considered, and express no opinion in reference to these rulings of the Circuit Court. The judgment is affirmed,