The homestead of a defendant is not subject to seizure and sale
by virtue of an execution sued out on a judgment recovered by the
United States in a civil action if, had a private party been the
plaintiff, it would be exempt therefrom, by the law of the state
where it is situate.
This is a bill in equity filed by O'Neil praying for a perpetual
injunction to restrain Fink, the then Marshal of the United States
for the Eastern District of Wisconsin, from further proceeding
under a
fi. fa. issued upon a judgment rendered in favor
of the United States in the district court for that district
against the complainant and others, and which had been levied on
real estate alleged to be his homestead, and exempt under the laws
of that state from sale on execution. The premises levied on are
forty acres, with a dwelling house and appurtenances thereon which
he occupied as a residence for himself and family consisting of his
wife and seven children, the same being used for agricultural
purposes, not included in any town, city, or village plot, and
alleged to be of the value of $6,000 and upwards, and it is averred
that the cause of action upon which the judgment was rendered was
not for any debt or liability contracted prior to Jan. 1, 1849.
To this bill there was filed a general demurrer for want of
equity which, being overruled and Fink declining to answer or
plead, a decree was rendered granting the relief prayed for, from
which he prosecutes this appeal.
The provision of the statute of Wisconsin on the subject of
homestead exemptions, the benefit of which was secured to the
appellee by the decree, is as follows:
"A homestead to be selected by the owner thereof, consisting,
when not included in any village or city, of any quantity of land,
not exceeding forty acres, used for agricultural purposes, and when
included in any city or village, of a quantity of land not
exceeding one-fourth of an acre, and the dwelling house thereon and
its appurtenances, owned and occupied by any resident of this
state, shall be exempt from seizure or sale on execution from the
lien of every
Page 106 U. S. 273
judgment and from liability in any form for the debts of such
owner, except laborers', mechanics', and purchase money liens, and
mortgages lawfully executed, and taxes lawfully assessed, and
except as otherwise specially provided in these statutes,"
&c. Rev.Stat. Wisconsin 1878 783, c. 130 sec. 2983.
Page 106 U. S. 275
MR. JUSTICE MATTHEWS, after stating the case, delivered the
opinion of the Court.
The statutory provision in relation to homesteads was enacted in
Wisconsin in express compliance with a constitutional injunction
wherein it is declared, in the seventeenth section of the Bill of
Rights that "the privilege of the debtor to enjoy the necessary
comforts of life shall be recognized by wholesome laws."
Phelps
v. Rooney, 9 Wis. 70, 83.
It has been the constant policy of the state in this
legislation, as construed by many decisions of its supreme court,
to favor by liberal interpretations the exemptions in favor of the
debtor. "For it cannot be denied," says that court in
Hanson v.
Edgar, 34 Wis. 653, 657,
"that in all the enactments found in our statute books in regard
to homestead exemption, the most sedulous care is manifest to
secure the homestead to the debtor and to his wife and family
against all debts not expressly charged upon it."
We have found no case in which the question has been raised, or
where there has been any expression of judicial opinion, whether
the exemption would prevail or not as to judgments in favor of the
state, but we do not doubt, from the language of the constitutional
and statutory provisions and the rules of construction followed in
other cases, that it would be held by its courts, if the question
should be directly made, that the state, except as to taxes, which
are expressly excepted, would be bound by the exemption.
In the case of
Doe ex dem. Gladney v. Deavors, 11 Ga.
79, it was decided by the Supreme Court of Georgia in 1852 that the
state was bound by acts of the legislature exempting certain
articles of personal property from levy and sale for debts for the
benefit of the wife and children of the debtor, so that they could
not be seized and sold under execution for the payment of taxes.
The court said, page 89:
"These laws are founded in a humane regard to the women and
children of families. The preamble to the act of 1822 announces the
grounds on which the legislature acted."
"Whereas [is its language] it does not comport with justice and
expediency to deprive innocent and helpless women and children of
the means of subsistence, be it therefore enacted,"
"&c. . . . In our judgment, the state
Page 106 U. S. 276
falls within the operation of a public law, passed for the
benefit of the poor, and the state is within the policy of our own
legislation upon this subject matter."
Mr. Thompson, in his Treatise on Homesteads and Exemptions, sec.
386, says:
"In many of the states, this question is determined by the
express provisions of statutes, which declare in various terms that
nothing shall be exempt from execution where the debt, other than
public taxes, is due the state, or where the debt is for public
taxes legally assessed upon the homestead or other property, or
where the demand is for a public wrong committed, punished by fine.
But where the question has arisen in the silence of statutes, the
highest courts of the states, with two exceptions, have held
otherwise."
Commonwealth v. Cook, 8 Bush (Ky.) 220, which is one of the
exceptions referred to, is shown, however, to have been materially
qualified by the decision in Commonwealth v. Lay,
12 Bush
283. That of Brooks v. State,
54 Ga. 36, turned on the
point that the exemption claimed operated retrospectively, and was
disallowed on the authority of 82 U. S. Barry, 15
Wall. 610. So that in point of fact, the decisions of state courts
upon the point are practically unanimous.
It is said, however, that the laws of the state creating these
exemptions are not laws for the United States, and this is
certainly true unless they have been made such by Congress itself.
This has not been an open question in this Court since the decision
in the cases of
Wayman v.
Southard, 10 Wheat. 1, and of the
Bank of the
United States v. Halstead, 10 Wheat. 51. Mr.
Justice Thompson, delivering the opinion of the Court in the latter
case, said:
"An officer of the United States cannot, in the discharge of his
duty, be governed and controlled by state laws any further than
such laws have been adopted and sanctioned by the legislative
authority of the United States. And he does not in such case act
under the authority of the state law, but under that of the United
States, which adopts such law. An execution is the fruit and end of
the suit, and is very aptly called the life of the law. The suit
does not terminate with the judgment, and all proceedings on the
execution are proceedings in the suit,"
&c. In
Wayman v. Southard, Mr. Chief
Page 106 U. S. 277
Justice Marshall had said that the proposition was "one of those
political axioms an attempt to demonstrate which would be a waste
of argument not to be excused."
The question therefore is whether the United States, by an
appropriate legislative act, has adopted the laws of Wisconsin
exempting homesteads from execution, and if at all, whether they
apply in cases of executions upon judgments in favor of the United
States.
Sec. 916, Rev.Stat., is as follows:
"The party recovering a judgment in any common law cause in any
circuit or district court shall be entitled to similar remedies
upon the same, by execution or otherwise, to reach the property of
the judgment debtor, as are now provided in like causes by the laws
of the state in which such court is held, or by any such laws
hereafter enacted which may be adopted by general rules of such
circuit or district courts, and such courts may from time to time,
by general rules, adopt such state laws as may hereafter be in
force in such state in relation to remedies upon judgments as
aforesaid, by execution or otherwise."
This provision is part of the sixth section of the Act of June
1, 1872, c. 255, entitled "An Act to further the administration of
justice," and has in its present form been in force since that day.
It is the result of a policy that originated with the organization
of our judicial system. The fourteenth section of the Act of Sept.
24, 1789, c. 20, commonly known as the Judiciary Act, provided that
the courts of the United States should have
"power to issue writs of
scire facias, habeas corpus,
and all other writs not specially provided for by statute which may
be necessary for the exercise of their respective jurisdictions and
agreeable to the principles and usages of law,"
and this was held to embrace executions upon judgments.
Wayman v.
Southard, 10 Wheat. 1. The Act of Sept. 29, 1789,
c. 21, entitled "An Act to regulate processes in the courts of the
United States," enacts
"That until further provision shall be made, and except where by
this act or other statutes of the United States is otherwise
provided, the forms of writs and executions, except their style and
mode of process and rates of fees, except fees to judges in the
circuit and district courts in suits at common law, shall be the
same in each state respectively
Page 106 U. S. 278
as are now used or allowed in the supreme courts of the
same."
This act was temporary, and expired by its own limitation at the
end of the next session of Congress. The Act of May 8, 1792, c. 34,
provided that the forms of writs, executions, and other process,
and the forms and modes of proceeding in suits at common law,
should continue to be the same as authorized by the act of
1789,
"subject, however, to such alterations and additions as the said
courts respectively shall in their discretion deem expedient or to
such regulations as the supreme court shall think proper from time
to time by rule to prescribe to any circuit or district court
concerning the same."
1 Stat. 275. This legislation came under review in this Court in
the cases of
Wayman v. Southard and
Bank of the United
States v. Halstead, in the latter of which it is said, 10
Wheat.
23 U. S. 60:
"The general policy of all the laws on this subject is very
apparent. It was intended to adopt and conform to the state process
and proceedings as the general rule, but under such guards and
checks as might be necessary to insure the due exercise of the
powers of the courts of the United States. They have authority,
therefore, from time to time, to alter the process in such manner
as they shall deem expedient, and likewise to make additions
thereto, which necessarily implies a power to enlarge the effect
and operation of the process."
This discretionary power in the courts of the United States was
restricted by the Act of May 19, 1828, c. 68, so that thereafter
writs of execution and other final process issued on judgments
rendered in any of the courts of the United States, and the
proceedings thereupon, should be the same, except their style, in
each state respectively, as were then used in the courts of such
state, provided however that it should be in the power of the
courts, if they saw fit in their discretion, by rule of court, so
far to alter final process in said courts as to conform the same to
any change which might be adopted by the legislatures of the
respective states for the state courts.
It will be seen from this provision that it was thereafter
prohibited to the courts of the United States either to adopt or
recognize any form of execution, or give any effect to it, except
such as was at the time of the passage of the act or had
subsequently
Page 106 U. S. 279
become at the time of their adoption, a writ authorized by the
laws of the state. The same provision has ever since been continued
in force, and is now embodied in sec. 916 of the Revised Statutes,
already quoted.
In
Beers v.
Haughton, 9 Pet. 329, which was governed by the act
of 1828, it was held that
"the words 'the proceedings on the writs of execution and other
final process' must, from their very import, be construed to
include all the laws which regulate the rights, duties, and conduct
of officers in the service of such process, according to its
exigency, upon the person or property of the execution debtor, and
also all the exemptions from arrest or imprisonment under such
process created by those laws."
It is further to be observed that no distinction is made in any
of these statutes on the subject between executions on judgments in
favor of private parties and on those in favor of the United
States. And as there is no provision as to the effect of executions
at all except as contained in this legislation, it follows
necessarily that the exemptions from levy and sale, under
executions of one class, apply equally to all, including those on
judgments recovered by the United States. The general power to
issue process, originally conferred by sec. 14 of the Judiciary Act
of 1789, which no appears as sec. 716, Rev.Stat., as being
in
pari materia with that contained in sec. 916, must be
construed as subject to the same limitations, especially as the
general power is confined in express terms to writs not
specifically provided for by statute, and hence,
ex vi
termini, embraces none included in the subsequent section.
Besides, as was said by Chief Justice Marshall in
Wayman v.
Southard, "this section provides singly for issuing the writ,
and prescribes no rule for the conduct of the officer while obeying
its mandate."
As the statute of Wisconsin exempting homesteads from levy and
sale upon executions was in force at the time the Act of Congress
of June 1, 1872, took effect, and has remained so continuously from
that time, it also follows that the exemption has thereby become a
law of the United States within that state, and applies to
executions issued upon judgments in civil causes recovered in their
courts in their own
Page 106 U. S. 280
name and behalf, equally with those upon judgments rendered in
favor of private parties. Laws of Wisconsin for 1848, pp. 40-41;
Rev.Stat. Wisconsin for 1871 ยง 23, p. 1548.
This conclusion cannot be avoided by the consideration which has
been urged upon us that the process acts do not limit the sovereign
rights of the United States, upon the principle that the sovereign
is not bound by such laws, unless he is expressly named. These laws
are the expression of the sovereign will on the subject, and are
conclusive upon the judicial and executive officers to whom they
are addressed, and as they forbid the issue of an execution in
every case, except subject to the limitations which they mention,
and as there is no authority to issue an execution in any case
whatever except as conferred by them, the sovereign right invoked
is left without the means of vindication. The United States cannot
enforce the collection of a debt from an unwilling debtor except by
judicial process. They must bring a suit and obtain a judgment. To
reap the fruit of that judgment, they must cause an execution to
issue. The courts have no inherent authority to take any one of
these steps except as it may have been conferred by the legislative
department, for they can exercise no jurisdiction except as the law
confers and limits it. And if the laws in question do not permit an
execution to issue upon a judgment in favor of the United States
except subject to the exemptions which apply to citizens, there are
no others which confer authority to issue any execution at all.
For, as was said by Mr. Justice Daniel in
Cary v.
Curtis 3 How. 236.
44 U. S.
245,
"the courts of the United States are all limited in their nature
and Constitution, and have not the powers inherent in courts
existing by prescription or by the common law."
This objection is also met expressly by the decision of this
Court in the case of
United States v.
Knight, 14 Pet. 301. It was there decided that the
Act of May 19, 1828, gives the debtors imprisoned under executions
from the courts of the United States at the suit of the United
States the privilege of jail limits in the several states as they
were fixed by the laws of the several states at the date of that
act. It was there objected, as here, that the provision of the
statute did not
Page 106 U. S. 281
embrace executions issued on judgments rendered in favor of the
United States, upon the ground that the United States are never to
be considered as embraced in any statute unless expressly named.
Mr. Justice Barbour delivered the opinion of the Court, and
said:
"The words of this section being 'that writs of execution and
other final process issued on judgments and decrees rendered in any
of the courts of the United States,' it is obvious that the
language is sufficiently comprehensive to embrace them unless they
are to be excluded by a construction founded upon the principle
just stated."
Referring to the maxim
nullum tempus occurrit regi, he
says it rests on the ground that no laches shall be imputed to the
sovereign, but he adds:
"Not upon any notion of prerogative, for even in England, where
the doctrine is stated under the head of prerogative, this in
effect means nothing more than that this exception is made from the
statute for the public good, and the King represents the nation.
The real ground is a great principle of public policy, which
belongs alike to all governments, that the public interest should
not be prejudiced by the negligence of public officers to whose
care they are confided. Without undertaking to lay down any general
rule as applicable to cases of this kind, we feel satisfied that
when, as in this case, a statute, which proposes only to regulate
the mode of proceeding in suits does not divest the public of any
right, does not violate any principle of public policy, but, on the
contrary, makes provisions, in accordance with the policy which the
government has indicated by many acts of previous legislation, to
conform to state laws, in giving to persons imprisoned under their
execution the privilege of jail limits; we shall best carry into
effect the legislative intent by construing the executions at the
suit of the United States to be embraced within the act of
1828."
The same line of reasoning was adopted by this Court in the case
of
Green v. United
States, 9 Wall. 655. It was there held that the Act
of July 2, 1864, which enacts that in courts of the United States
there shall be no exclusion of any witness in civil actions
"because he is a party to or interested in the issue tried," and
the amendatory Act of March 3, 1865, making certain exceptions to
the rule, apply to civil actions
Page 106 U. S. 282
in which the United States are a party as well as to those
between private persons. It was argued by the Attorney General that
the statutes were meant to give both parties an equal standing in
court in respect to evidence; that the United States not being able
to testify, a party opposed to them should not be allowed to do so
either, and that, independently of this, it was a rule of
construction that "the King is not bound by any act of Parliament
unless he be named therein by special and particular words." MR.
JUSTICE BRADLEY, who delivered the opinion of the Court, replying
to this argument, said:
"It is urged that the government is not bound by a law unless
expressly named. We do not see why this rule of construction should
apply to acts of legislation which lay down general rules of
procedure in civil actions. The very fact that it is confined to
civil actions would seem to show that Congress intended it
to apply to actions in which the government is a party, as well as
those between private parties. For the United States is a necessary
party in all criminal actions which are excluded
ex vi
termini, and if it had been the intent to exclude all other
actions in which the government is a party, it would have been more
natural and more accurate to have expressly confined the law to
actions in which the government is not a party, instead of
confining it to
civil actions. It would then have
corresponded precisely with such intent. Expressed as it is, the
intent seems to embrace, instead of excluding, civil actions in
which the government is a party. Nothing adverse to this view can
be gathered from the exceptions made in the amendment passed in
1865."
And although it has been decided by the highest judicial
tribunals in England --
Feather v. The Queen, 6 B. &
S. 257;
Dixon v. Small Arms Co., 1 App.Cas. 632, that the
sovereign is entitled to the use of a patented process or invention
without compensation to the patentee, because the privilege granted
by the letters patent is granted against the subjects only, and not
against the Crown, a contrary doctrine was held by this Court in
James v. Campbell, 104 U. S. 356, to
prevail in this country. MR. JUSTICE BRADLEY, delivering the
Page 106 U. S. 283
opinion of the Court in that case, said:
"The United States has no such prerogative as that which is
claimed by the sovereigns of England by which it can reserve to
itself, either expressly or by implication, a superior dominion and
use, in that which it grants by letters patent to those who
entitled themselves to such grants. The government of the United
States, as well as the citizen, is subject to the Constitution, and
when it grants a patent, the grantee is entitled to it as a matter
of right, and does not receive it, as was originally supposed to be
the case in England, as a matter of grace and favor."
It is true that in the case of
United
States v. Herron, 20 Wall. 251, it was decided that
a debt due to the United States is not barred by the debtor's
discharge with certificate under the Bankrupt Act of 1867, but in
that case Mr. Justice Clifford took pains, by a careful collation
of numerous provisions of the statute, to show that the words
"creditor or creditors," as contained in the act, did not include
the United States, adopting and extending the definition by Mr.
Justice Blackburn in
Woods v. De Mattos, 3 Hurl. &
Colt. 995, because used in the sense of persons having a claim
which can be proved under the bankruptcy, and not required by the
act to be paid in full in preference of all others. But the
Bankrupt Act furnished clear evidence of the policy of Congress in
reference to exemptions of property from sale for the payment of
debts by excepting from its operation personal property necessary
to the use of the family to the amount of $500, and such other
property as was exempt from execution by the laws of the United
States and of the state of the debtor's domicile. Rev.Stat. sec.
5045. And Congress, since May 20, 1862, c. 75, providing for the
acquisition of homesteads for actual settlers upon the public
lands, has made their exemption from sale on execution a permanent
part of a national policy by declaring that lands so acquired
should not "in any event become liable to the satisfaction of any
debt contracted prior to the issuing of the patent therefor."
Rev.Stat. sec. 2296;
Seymour v. Sanders, 3 Dillon 437;
Russell v. Lowth, 21 Minn. 167.
If a contrary construction to the process acts should be given
on the ground that they do not include the United
Page 106 U. S. 284
States, which, although a litigant, continues nevertheless to
exercise the prerogatives of a sovereign, it would follow that they
might resort to any writ known to the common law, however
antiquated or obsolete and in defiance of the progress of
enlightened legislation on that subject, revive all the hardships
of imprisonment for debt, even without the liberty of local
statutory jail limits. But that this is not within the meaning of
these acts of Congress we have positive and plenary proof in sec.
1042 of the Revised Statutes. This was sec. 14 of the Act of June
1, 1872, c. 255. It provides that
"When a poor convict, sentenced by any court of the United
States to pay fine, or fine and cost, whether with or without
imprisonment, has been confined in prison thirty days solely for
the nonpayment of such fine, or fine and cost, he may make
application in writing to any commissioner of the United States
court in the district where he is imprisoned, setting forth his
inability to pay such fine, or fine and cost, and after notice to
the district attorney of the United States, who may appear, offer
evidence, and be heard, the commissioner shall proceed to hear and
determine the matter, and if on examination it shall appear to him
that such convict is unable to pay such fine, or fine and cost, and
that he has not any property exceeding twenty dollars in value,
except such as is by law exempt from being taken on execution for
debt, the commissioner shall administer to him"
an oath, the form of which is set out, in which he swears that
he has not any property, real or personal, to the amount of twenty
dollars except such as is by law exempt from being taken on civil
precept for debt by the laws of the state, where the oath is
administered, and that he has no property in any way conveyed or
concealed, or in any way disposed of, for his future use or
benefit. "And thereupon," the statute proceeds, "such convict shall
be discharged," &c. This section is repeated as sec. 5296,
Rev.Stat., under the title "Remission of Fines, Penalties, and
Forfeitures."
Nothing can be more clear than this as a recognition by Congress
that in case of executions upon judgments in civil actions, the
United States are subject to the same exemptions as apply to
private persons by the law of the state in which
Page 106 U. S. 285
the property levied on is found, and that by this provision in
favor of poor convicts it was intended, even in cases of sentences
for fines for criminal offenses against the laws of the United
States, that the execution against property for its collection
should be subjected to the same exemptions as in civil cases.
In
The Magdalen College Case, 11 Rep. 66
b,
Lord Coke, referring to
Lord Berkley's Case, Plowd.Com.
233, 246, declares that it was there held that the King was bound
by the statute
De Donis, 13 Edw. I, c. 1, because, for
other reasons, "it was an act of preservation of the possession of
noblemen, gentlemen, and others," and "the said act," he
continues,
"shall not bind the King only, where he took an estate in his
natural capacity, as to him and the heirs male of his body, but
also when he claims an inheritance as King by his prerogative."
By parity of reasoning, based on the declared public policy of
states, where the people are the sovereign, laws which are acts of
preservation of the home of the family, exclude the supposition of
any adverse public interest, because none can be thought hostile to
that, and the case is brought within the humane exception that
identifies the public good with the private right, and declares
"that general statutes, which provide necessary and profitable
remedy for the maintenance of religion, the advancement of good
learning and for the relief of the poor, shall be extended
generally according to their words,"
for civilization has no promise that is not nourished in the
bosom of the secure and well ordered household.
Decree affirmed.