Terrell & Vincent v. Hurst, Miller & Co.

SOMERVILLE, J. — The right of exemption to personal property, in this State, may be waived, by clearly expressing such intention of waiver in any instrument of writing, including a bill of exchange, promissory note, or other contract. But, when such waiver relates to a homestead, or exemption in realty, it is required to be made by a separate instrument in writing, and must be signed by both husband ánd wife, and attested by at least one witness. — Const. 1875, Art. X, § 7; Code, 1876, §§ 2846-2848. The words, which are claimed in the present case to operate as a waiver of exemption to personal property, are incorporated in a promissory note, and are as follows : “ The maker and indorser each hereby waive all benefit of the hom.estead exemption laws on both real and personal property, as to the debt evidenced by this note.” There is no contention that this waiver affects any homestead right or claim of exemption in real estate whatever. It is manifestly defective, in several particulars, for this purpose. It is only contended that it is valid as a waiver of any right of exemption to personalty. The failure of the instrument to affect any interest in realty, does not satiate its validity so far as concerns personalty. It [590] may be void entirely for the former purpose, and perfectly valid for the latter. This was decided in Neely v. Henry (68 Ala. 261), where this court said : “ There is no rule of construction of written instruments, of mere general application, or more beneficial in giving effect to the intention of the parties, than that it shall, if possible, be so interpreted %vt res magis valeat quampereat; and where a contract can not operate in the precise manner, or to the full extent intended by the parties, it shall, nevertheless, be made as far as possible to effectuate that intention,” The contract in question must, in our opinion, be construed as evincing a clear intention to waive all right of exemption to personal property, although it be abortive as an attempt to affect any rights in realty. The word “homestead” must be restricted as an adjective qualification having reference only to realty, and must be deemed surplusage as applied to exemption laws affecting personal property. The language used may be inaccurate, and the grammar false ; but this is never permitted to defeat an intention which can be clearly ascertained by a fair and reasonable construction of the contract. The exemption waiver under consideration could only operate against Terrell, and not against his partner, Yincent, because he was without authority to bind Yincent as to such a matter. Partnerships, as such, are not entitled to any rights of exemption as against partnership creditors; nor are the individual partners so entitled, in firm property taken under legal process for partnership debts. — Giovanni v. First National Bank, 55 Ala. 305. The statute, too, make partnership contracts and obligations several as well as joint. — Hall v. Green & Co., 69 Ala. 368 ; Code, 1876, § 2904-. The waiver was, therefore, good as against the individual personalty of Terrell, and the court did not err in so construing the contract as evidenced by the several notes which are the foundation of the suit- Judgment affirmed.