McCreight v. W. W. Scales & Co.

Ethridge, J., delivered the opinion of the court. Prior to the year 1914, J. B. McCreight contracted a certain indebtedness to W. W. Seales & Co., evidenced by his promissory note, at which time McCreight and his wife occupied the land involved in this suit as a homestead. Chapter 225, Laws of 1914, was adopted on March 26,1914, and reads as.follows: “2146 (1970). Homestead exemption in country. Every citizen of this state, male or female, being a householder, and having a family, shall be- entitled to hold exempt from seizure or sale, under execution or attachment, the land- and buildings. owned and occupied as a residence by him or her, but the quantity of land shall not exceed one hundred and sixty acres, nor the value thereof, inclusive of improvements, save as hereinafter provided, the sum of three thousand dollars. But husband or wife, widower or widow, over sixty years of age, who have been exemptionists under this section, shall not be deprived of such exemption because of not having family or not occupying the homestead.” McCreight at that time was more than sixty years of age. Mrs. McCreight, the wife of said J. B. McCreight, died on May 24, 1919. On May 13, 1920, an office confession of judgment was secured by Scales & Co. from J. B. McCreight. On July 11,1920, J. B. McCreight died. On August 19, 1920, a petition for execution was filed with the circuit judge of the district, and was granted and levied upon the land formerly -occupied by J. B. McCreight as a homestead, and an injunction was sued out restraining the execution of such judgment by the heirs at law of J. B. McCreight and V. L. McCreight, his wife, the wife at her death owning a one-half interest in the said lands constituting the homestead and embraced in this suit. The court below dissolved the injunction and ordered the land sold, holding it was [312] subject to execution under the above stated facts. From this judgment this appeal is prosecuted. The question presented for consideration by.this appeal is whether the lands were exempt from execution under the facts above stated by virtue of the act above set forth, or, if the exemption continued after the death of Mrs. McCreight, then the lands descended to the heirs free from the debts of McCreight. But if the lands ceased to be exempt the rights of the creditors to have the lands sold to satisfy the judgment would exist, and the suit of injunction would necessarily fail. It seems that the court below was of the opinion that the act could not be applied to the debt here involved because the debt was contracted prior to the enactment of the statute, and that the creditor had a vested right on the happening of the facts above stated to have the said law applied by which J. B. McCreight would have lost his exemption, it being shown that J. B. McCreight and his wife at the time of her death had no minor children or dependents which would after the death of Mrs. McCreight continue to constitute a family. The appellants contend that, inasmuch as the property here involved was exempt from execution at the date the debt was contracted, and McCreight and his wife could have sold or otherwise disposed of the property at that time, it was competent for the legislature to enact the law and make it applicable to the homestead right here claimed. Section 2146, Code of 1906, as it existed prior to the amendment, of 1914, reads as follows: “Every citizen of this state, male or female, being a householder, and having a family, shall be entitled to hold exempt from seizure or sale, under execution or attachment, the land and buildings owned and occupied as a residence by him or her, but the quantity of land shall not exceed one hundred and sixty acres, nor the [313] value thereof, inclusive of improvements, save as hereinafter provided, the sum of three thousand dollars.” The appellees rely upon Lessley v. Phipps, 49 Miss. 790, Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977, and Gunn v. Barry, 15 Wall. 610, 21 L. Ed. 212, in which cases it was held that the legislature was powerless to exempt property from execution against a debt contracted prior to the enactment of the law, as such property would be subject to the debt and so to do would be to impair the .obligation of the contract prohibited both by the Bill of Rights of the state Constitution and by the provision against the impairment of the obligation of contracts in the Federal Constitution. In Lessley v. Phipps, 49 Miss. 790, our court, speaking through Judge Simralu, said: “The lesson of the adjudications is that the creditor may trust to the law as it is when he contracts, to know how much of the estate of the debtor he may look to for satisfaction. The existing law is in the contemplation of both parties. That furnishes approximately a safe basis of credit. If subsequent laws may come in, and deny satisfaction out of half the property before liable, it is too plain for argument or illustration that such a statute seriously impairs the right.” The court in that case also quoted from Gunn v. Barry, supra, as follows: “The legal remedies for the enforcement of a contract, which belong to it at the time and place where it is made are a part of its obligation; the state may change them, provided the change involves no impairment of a substantial right. If the act fall within the category last mentioned, it is to that extent utterly void.” We recognize the force and spirit of these decisions, but we think they do not cover the present case. At the time the contract was made the property was exempt and the creditor had no right to look to such property for the satisfaction of his debt. Therefore there was no kind of [314] contractual right to resort to this property. The legislature, prior to the happening of the condition which would subject the property to the claim of the creditor, could continue the exemption. In other words, the property .was then exempt, and nothing had happened that would give the creditor any right to resort to it for a satisfaction of his debt. The legislature could therefore, without impairing any right the creditor had, prescribe new conditions of exemption. Before the creditor would have any right the status of the parties would have to change. If the wife had died prior to the enactment of the statute the plaintiff would under the law as it then existed have had a right to resort to the property of the husband, the debtor, for satisfaction of this debt. But it was not the law at the time the contract was made that he could resort to this property. Therefore, if the law at the time of the contract became a part of the contract, it gave the creditor no rights so far as this property was concerned. It is argued here that the creditor had the right to have the conditions of exemption remain as they then were, and that one of the things which might have influenced the creditor in extending credit was the possibility of the wife dying and the debtor losing his homestead exemption. This was no such vested right as the taking away by legislation would constitute an impairment of the contract. A creditor has a right to look to certain property if the debtor should acquire it, but he had no vested right until it came into the possession of the creditor. In other words, the right was remote and contingent, and not present and existing. The event necessary to make exempt property liable might not have happened. It could be defeated at the will of the debtor. The giving of the right of exemption to exemptionists who have attained sixty years of age, and who are consequently reaching that stage of life when their ability to earn and accumulate is impaired, and the prevention of [315] such person becoming a subject for public support, would be a reason, in our opinion, to sustain the exemption. We are therefore of the opinion that Mr. McCreight never lost his exemption, and on his death the property descended under our statutes to his heirs free from his debts. The judgment will therefore be reversed, and judgment entered here making the injunction perpetual. Reversed, and judgment here.