Edwards v. Kearzey/Concurrence Hunt

MR. JUSTICE HUNT.

I concur in the judgment in this case, for the reasons following:--

By the Constitution of North Carolina of 1868, the personal property of any resident of the State, to the value of $500, is exempt from sale under execution; also, a homestead, the dwelling and buildings thereon, not exceeding in value $1,000.

The debts in question were incurred before the exemptions took effect. The court now holds that the exemptions are invalid. In this I concur, not for the reason that any and every exemption made after entering into a contract is invalid, but that the amount here exempted is so large, as seriously to impair the creditor's remedy for the collection of his debt.

I think that the law was correctly announced by Mr. Chief Justice Taney in Bronson v. Kinzie (1 How. 311), when he said: A State 'may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of a mechanic, or articles of necessity in household furniture, shall, like wearing-apparel, be not liable to execution on judgments.'

The principle was laid down with the like accuracy by Judge Denio, in Morse v. Goold (11 N. Y. 281), where he says: 'There is no universal principle of law that every part of the property of a debtor is liable to be seized for the payment of a judgment against him. . . . The question is, whether the law which prevailed when the contract was made has been so far changed that there does not remain a substantial and reasonable mode of enforcing it in the ordinary and regular course of justice. Taking the mass of contracts and the situation and circumstances of debtors as they are ordinarily found to exist, no one could probably say that exempting the team and household furniture of a householder to the amount of $150 from levy or execution would directly affect the efficiency of remedies for the collection of debts.' Mr. Justice Woodbury lays down the same rule in Planters' Bank v. Sharp et al., 6 How. 301.

In my judgment, the exemption provided for by the North Carolina Constitution is so large, that, in regard to the mass of contracts and the situation and circumstances of debtors as they are ordinarily found to exist, it would seriously affect the efficiency of remedies for the collection of debts, and that it must, therefore, be held to be void.