
    Case 41 — PETITION EQUITY
    September 29.
    Kibbey v. Jones.
    appeal from carter circuit court.
    1. The homestead exemption act does not apply to that part of a debt wmcn was created befoee June 1, 1866. — In this case a note for one hundred dollars was executed before June 1, 1866, and a debt of eighty dollars was created after that date. A new note was then executed for one hundred and eighty dollars as a renewal of the first note, so as to include the debt subsequently created.
    2. The note for one hundred dollars, though merged in the note for one hundred and eighty dollars, is nevertheless still as at first a debt undischarged.
    3. Property which was subject to the creditor’s remedy when the debt of one hundred dollars was created could not be constitutionally exempted from that liability.
    1. The renewal of an obligation to pay is not a payment. — The renewal of a note executed before June, 1866, so as to include with it another debt created after that date, did not operate as a payment of the first note, but only as a renewal of the obligation to pay. The homestead was subject to that part of the aggregate note which was a renewal of the note executed before the homestead exemption act took effect.
    
      
      W. C. Ireland,.........For Appellant,
    CITED
    5 Bush, 393, Marsh v. Alford and wife.
    J. R. Botts,...........For Appellee,,
    CITED
    2 Bush, 72, Lowry v. Fisher.
    4 Bush, 379, Pryor, &e. v. Smith.
   CHIEF JUSTICE ROBERTSON

delivered the opinion or the court.

The appellant, as holder of a judgment against the appellee, on a note for one hundred and eighty dollars, given since the first of June, 1866, in consideration of a note executed before that date for one hundred dollars, and of a debt of eighty dollars contracted since, filed a petition in equity for subjecting a tract of land claimed as exempt from execution by the provisions of the homestead act. The circuit court sustained a demurrer to the petition, and thereupon dismissed it.

The only possible objection to the sufficiency of the allegations is the incorporation into the last note of a debt contracted since the homestead act went into operation, which the appellee’s counsel assumes as equivalent to payment of the pre-existing debt of one hundred dollars, which therefore can not be privileged by the exception of such debts from the operation of the statute. But this position is not maintainable. The only reason of the exception is the fundamental prohibition of any legislative act impairing the obligation of contracts which would have been the effect of a retroactive exemption of property from liability to legal remedy for enforcing contracts. The note' for one hundred dollars, though merged in a more comprehensive obligation, is nevertheless still, as at first, a debt undischarged; and to exempt from execution on the aggregate judgment so much of the augmented debt, property subject to the creditor’s remedy when the first contract to pay it was made, would be as unconstitutional as if tbe note for it had never been absorbed by a novation, which did not operate as payment, but only as a renewal of the obligation to pay. And this principle has been more than once recognized and applied to the homestead act by the judgment of this court.

Wherefore the judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.  