
    R. A. GAGE et al. v. R. S. NEBLETT,
    SUPREME COURT,
    AUSTIN TERM, 1882.
    
      Homestead — Lien—Judgment—A judgment lien on land will uU lie defeated by a subsequently acquired homestead right.
    Appeal from Ravarro county
    H. A. Halbert and Shubins & Simkins for appellants. R. S. Reblett, Lee and Damon for appellee.
   Bonner, J.

Opinion by The controlling question in this es.se is, which is superior, a judgment lien on land, or a subsequently acquired homestead right ?

In the case of Baird v. Trice, 51 Texas, 555, it was decided that an attachment lien on land will not be defeated by a subsequently acquired homestead right. The doctrine of that case has since been afiii >ned by this court, is sustained by numerous authorities elsewhere. and is, we think, founded on justice and sound principle.

In Bullene v. Hiatt, the Supreme Court of Kansas say: “The atkmlnv.cni; lien existed nearly three months before the homestead rigid- was created. And while homestead laws are everywhere to be cor? I bo: ?d favorably, yet they are not to he so construed as t<t dwv-bey pre-existing rights. * * * * An attachment lien,, like other lions, though not an estate in the land (Chick v. Willets, 2 Kansas, 391), is such vested interest therein that it oannot.be affected by any subsequent act of the debtor.” (12 Kansas, 101.)

That ike judgment lien creates such vested right as will be protect,oil by section 10, article 1, Constitution of the United States, which prohibits a State from passing any law which impairs the obligation of a contract, has been expressly decided by the Supreme Court of the United Stales, the decisions of which august tribunal up?on questions of tbis character are of peculiarly binding authority upon the State Courts. (Gunn v. Barry, 15 Wallace, 610; Edwards v. Kearzey, 6 Otto, 607.)

In Railroad Company v. Winter, 44 Texas, 597, it was held that a change of designation of homestead by moving the houses, or by changing the boundaries of it, substantially different from the locality which the pre-existing facts of ostensible use and enjoyment have fixed as a homestead, cannot he made to the injury or destruction of rights of judgment lien holders, or of purchasers from thehuebond without the wife being joined, and existing before such attempted change.

In that case, Roberts, Chief Justice, delivering the opinion of tho corar?,, says that “if the judgment lien was acquired on said tw-y — Palmer survey — when it was no part of the homestead, the defendant could not change the homestead, so as to cover any pari of ft necessary for the satisfaction of the judgment.” * * * (44 Texas, 615.)

The difference between that case and the present is that in the former K wrs sought to change the boundaries of an already existing hor<Mstefíd, here it is sought to acquire a new homestead, both to-the prejudice of pre-existing judgment liens. There is no difference In principle.

We might very well rest this case upon that decision, but will briefly advert, to some of the many authorities by which it is sustained, jot o based upon the proper construction of constitutional, provisions, others of statutes.

In Gunn v. Barry, 15 Wallace, 610, the question arose under a-provision of the new Constitution of the State of Georgia, which -extended the homestead exemption so that it destroyed a judgment lien which a creditor had under previously existing laws. It was unanimously'held that this was contrary to section 10, article 1 of the Constitution of the United States, and hence null and void.

The learned judge delivering the opinion of the court, speaking of the Constitution of Georgia, says: “It withdraws the land from the lien of the judgment, and thus destroys a vested right of property which the creditor had acquired in the pursuit of the remedy to which he was entitled by the law as it stood when the judgment was recovered. It is in effect taking one person’s property and giving it to another without compensation. 'This is contrary to reason and justice, and to the fundamental principles of the social compact,” (15 Wallace, 622, citing Calder v. Bull, 3 Dallas, 388.)

The homestead claim there vested, not as in this case, upon the mere voluntary act of the debtor, nor upon an act of the Legislature, but upon a constitutional provision, passed by the people of the State in solemn convention assembled.

The later case of Edwards v. Kearzey, decided by the same high .-authority, is very similar to that of Gunn v. Barry, supra, and to which it refers. It arose under the Constitution of North Carolina and certain acts of the Legislature to carry the same into effect. By that Constitution, the exemption of $500 worth of property, in force when the debts were created, was extended so as to include property to the value of $1000. The indebtedness in that case, though created before the adoption of the Constitution was not reduced to judgment until after the date of the legislative enactment to carry the same into effect.

Two of the three judgments were docketed to create judgment liens on the property claimed to be exempt. It was decided that this constitutional and statutory extension of the amount of exempt property was, as to this prior existing indebtedness, null and void ■under the provision of the Constitution of the United States above cited. In the opinion, it is said that “ The remedy subsisting in a State, where a contract is made and is to be performed, is a part of its obligation, and any subsequent law of the State, which so far affects that remedy as substantially to impair and lessen the value of the contract, is forbidden by the Constitution, and is, therefore, void.” (6 Otto, 607)

To the same effect are what is known as the homestead cases,’1 which arose under the construction of the Constitution of the State of Virginia, in an elaborate opinion in 22 Grafton, 266; Kibley v. Jones, 7 Bush [Ky.], 243; Leesley v. Phipps, 49 Miss., 790.)

The Supreme Court of Nebraska, in Bowker v. Collins, where the very question here under consideration was decided, say: “ It is clearly shown that the lien of the judgment had attached to the lands in question at the time Collins entered thereon for the purpose of claiming the same as a homestead. Does the right of homestead attach in such a case so as to defeat the lien of the judgment? We think not. * * * The homestead law, being remedial in its character, should receive the most liberal construction consistent with justice, for the purpose of preserving a home to the unfortunate. But it must not be forgotten that the payment of just obligations is the foundation on which rests our industrial and commercial prosperity; and the design of the homestead law is not to enable those claiming its benefits to evade the payment of debts justly due, but to prevent the household being broken up and destroyed, and to leave under the control of the debtor the means by which he may, by economy, retrieve his fortune and be enabled, in time, to meet his obligations.” (4 Nebraska, 496.)

Both the language and sentiment of this opinion we most heartily endorse as being sound law and good morals — just, alike to the creditor, as well as to the debtor.

To the same effect are the cases of Ashton v. Ingle, 20 Kan., 675; Bartholomew v. Hook, 23 Cal., 279; Hale v. Heaslip, 16 Ia., 451; Elston v. Robinson, 21 Ia., 534; Seamans v. Carter, 15 Wis., 548; Dopp v. Alber, 17 Id., 609, in which the question was as to the superiority of judgment liens or subsequently acquired homestead rights; and also the cases of McKeithan v. Terry, 64 North Carolina, 25; Scuder v. Rodgers, Id., 290, which involved the construction of the Constitution of that State, and were eases of execution liens; the case of Tuttle v. Howe, 14 Minnesota, 145, which was a mechanic’s lien; the cases of Pitman v. Moore, 43 Illinois, 169; McCormick v. Wilcox, 25 Id., 274, which were mortgage liens; and Freeman on Judgments, § 355, which relates to a judgment lien.

The following cases were reviewed and shown not to conflict with this doctrine: Trotter v. Dobbs, 38 Miss.; Irwin v. Lewis, 50 Id.; Letchford v. Cary, 52 Id.; Hawthorne v. Smith, 3 Nevada; Freeman v. Dewell, 35 Iowa.

It has been contended that the cases of Trotter v. Dobbs, 38 Miss., 198; Irwin v. Lewis, 50 Id., 363; Letchford v. Cary, 52 Id., 791; Hawthorne v. Smith, 3 Nevada, 182, and Freeman v. Dewell, 35 Iowa, 170, established a different doctrine.

The case of Trotter v. Dobbs, 38 Miss., turned upon the construction of a statute of that State, of which the creditor was SO' chargable with notice, that it must be held to have entered into the contract. (Leesley v. Phipps, 49 Miss., 790.)

The opinion says: “ No legal right of the plaintiff in the judgment rendered before the marriage is impaired, because, by the statute, his judgment, though generally a lien on all the property of the defendant, was subject to the restriction, that if he did not sell certain property of the defendant before he became a householder and had a family, it should be exempt from execution upon his afterwards assuming that relation. This was the effect of the statute exempting property from execution; it was a part of the policy of our laws) and the judgment was of course rendered subject to the rule established by the statute.” (38 Miss., 200.)

The subsequent cases of Irwin v. Lewis, 50 Miss., 363, and Letchford v. Cary, 52 Miss., 791, áre based upon the prior case of Trotter v. Dobbs, supra, and the construction therein given to the statute. *

In the case of Hawthorne v. Smith, 3 Nevada, 182, Hawthorne had previously moved upon the land, and was in the actual occupancy of it as his homestead at the date of the institution of the suit and the levy of the attachment, though he had not filed a. formal declaration of his intention to make it a homestead. The court held, that it was his homestead, in fact, and that under the facts of that case the homestead right was superior.

' The case of Freeman v. Dewell, 35 Iowa, 170, in which there was a change from an old to a new homestead, and in which, for the purposes of the opinion, it was conceded that the homestead right had in fact attached, was under a statute which provided that the owner might from time to time change his homestead, but that “such changes shall not prejudicé conveyances or liens made or created previously thereto;” and which further provided that “ the new homestead, to the extent in value of the old, is exempt from execution in all cases where the old or former Ifomestead would have been exempt, but in no other or in any greater degree.” ' (35 Iowa, 171.) In this case it was held that the deferidánt having changed his homestead from premises on a lot in a town to a tract not exceeding forty acres in the country, and of no greater value than the first homestead,tbe new one was exempt.

Tbe effect of that decision was to uphold the judgment lien, not to impair it, for the new homestead was held exempt to the extent of the value only of the old one, and the lien was changed from the one to the other.

The authorities cited in this opinion, and doubtless many others which could be found, place it beyond question that, as a general ‘rule, a previously acquired lien, whether general or special, voluntary' or involuntary, upon real property, cannot be subsequently de-"" feated by tbe voluntary act of the debtor in attempting to make it bis homestead. Tbe only exception which now occurs to us arises under our decisions in insolvent estates, in which' it has been held, that under the peculiar phraseology of our statute tbe allowances made to tbe surviving widow and children would defeat a prior specific lien. In these cases, however, tbe creditor is held bound to have taken notice of tbe existing statute and to have contracted in reference to it.

We do not decide that the Legislature might not have the power, whether the courts may have it or not, to declare that a homestead right might attach to property acquired subsequently to the rendition of a judgment against the debtor, when bought with a present bona fide intention to dedicate it to a homestead, coupled with acts of preparation and subsequent early occupation as such.

Judgment affirmed.  