Gunn v. Barry,
Annotate this Case
82 U.S. 610 (1872)
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U.S. Supreme Court
Gunn v. Barry, 82 U.S. 15 Wall. 610 610 (1872)
Gunn v. Barry
82 U.S. (15 Wall.) 610
An exemption law of Georgia, passed several years ago, exempted from execution in favor of each head of a family,
"fifty acres of land, and five additional ones for each of his children under the age of 16 years, the land to include the dwelling house and improvements if the same do not exceed $200,"
and exempted many other things, chiefly household furniture, wearing apparel, books, family portraits, &c., the value of which was not limited, and which might vary with different debtors and their families. With that law in force, A. obtained a judgment for $531 against B., who had 272 1/2 acres of land, worth $1,300, and had no other property but land worth $100 from which the judgment could be satisfied. In this state of things, Georgia, having passed an "ordinance of secession," withdrew her senators and representatives from the Congress of the United States and went into the rebellion. The rebellion being suppressed, but Georgia not being allowed by Congress yet to send senators and representatives to its sessions, Congress passed what was known as the Reconstruction Act. This act, reciting that "no legal state government or adequate protection for life or property now existed in the rebel State of Georgia," authorized the said state to make a constitution, which being submitted to Congress and approved by it, the state was to be entitled to representation. The people of the state did accordingly make a new constitution and submit it to Congress. This new constitution provided that
"Each head of a family should be entitled to a homestead of realty to the value of $2,000 in specie, and personal property to the value of $1,000 in specie, to be valued at the time they are set apart,"
and ordained further that
"No court or ministerial officer in the state shall ever have jurisdiction or
authority to enforce any judgment, decree, or execution against said property so set apart, including such improvement as may be made thereon from time to time, except for taxes, money borrowed or expended in the improvement of the homestead or for the purchase money of the same and for labor done thereon or material furnished therefor or removal of encumbrances thereon."
The constitution with this exemption and these provisions in it was submitted to Congress, which approved part of it and disapproved of other parts, enacting only that after certain changes were made, the state should be entitled to representation. No objection was made to the clauses of exemption or the provisions above quoted. The State of Georgia complied with the requirements of Congress, and a constitution satisfactory to that body being made -- these clauses of exemption and the accompanying provisions, being in it -- the state was declared entitled to representation.
1st. That as respected a creditor who had obtained by his judgment a lien on the land which the old exemption secured to him while the new one destroyed it, the law creating the new exemption impaired the obligation of a contract, and was unconstitutional and void.
2d. That the fact that the constitution had been made under the special circumstances and in the special way above mentioned, and under the eye of Congress, did not change the case.
By a statute of Georgia passed many years ago, it was enacted that the following property, belonging to a debtor who was the head of a family, should be exempt from levy and sale.
"Fifty acres of land, and five additional ones for each of his children under the age of 16 years, the land to include the dwelling house if the same and improvements do not exceed $200."
"One farm horse or mule."
"One cow and calf."
"Ten head of hogs."
"Fifty dollars' worth of provision, and five dollars' worth for each additional child."
"Beds, bedding, and common bedsteads sufficient for the family."
"One loom, one spinning wheel, two pair of cards, and one hundred pounds of lint cotton."
"Common tools of trade for himself and his wife. "
"Equipment and arms of a militia soldier and trooper's horse."
"Ordinary cooking utensils and table crockery."
"Wearing apparel of himself and family."
"Religious works and school books."
"The library of a professional man not exceeding $300 in value, to be selected by himself."
In 1861, with this statute in existence, the State of Georgia passed what was called "an ordinance of secession" from the United States and joined in the treason and rebellion against the federal government into which the slaveholding states, for the most part, entered. Her senators and representatives withdrew from Congress; her state government passed into the hands of persons at war with the United States; and she became one of the states styled "The Confederate States of America" -- a confederacy which waged war for several years on the government and whose insurrection and rebellion the government, on the other hand, sought by force of arms to suppress. The arms of the United States having proved triumphant, the so-called government of the Confederate States fell to pieces, and the State of Georgia was left where she had put herself -- that is to say, in the hands of traitors and rebels. No senators or representatives were allowed by the Congress of the United States to come back to its chambers as of old.
In this state of things, in May, 1866, Gunn obtained judgment in one of the courts of the state for $402.30 principal and $129.60 interest (in all, $531.90), against a certain Hart. For what the judgment had been obtained did not appear. Hart had at this time 272 1/2 acres of land, worth $1,300, and the judgment bound it as a lien. He had no other land but one piece worth about $100.
On the 2d of March, 1867, the rebellion being suppressed but the ancient relation of Georgia to the general government being still, in point of fact, not restored by representation, the Congress of the United States passed "an act to
provide for the more efficient government of the rebel states," the act commonly called the Reconstruction Act. [Footnote 1] This act -- reciting that "no legal state governments or adequate protection for life or property now existed in the rebel States of Virginia, Georgia, North Carolina," &c., and that it was "necessary that peace and good order should be enforced in the said state till loyal republican state governments could be legally established," and putting these said states under military rule -- enacted that when the people of any one of the said rebel states should have formed a constitution of government in conformity with the Constitution of the United States in all respects, and
"when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same . . . &c., said state shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom."
In pursuance of what was contemplated by this act and of certain amendments to it, the people of Georgia did make a constitution. This constitution, by the first section of its seventh article, ordained that:
"Each head of a family or guardian or trustee of a family of minor children shall be entitled to a homestead of realty to the value of $2,000 in specie, and personal property to the value of $1,000 in specie, to be valued at the time they are set apart."
It went on further to declare:
"And no court or ministerial officer in this state shall ever have jurisdiction or authority to enforce any judgment, decree, or execution against said property so set apart, including such improvement as may be made thereon from time to time, except for taxes, money borrowed or expended in the improvement of the homestead, or for the purchase money of the same, and for labor done thereon, or material furnished therefor, or removal of encumbrances thereon."
The constitution, having been thus adopted in form by the people of Georgia, was sent with this article included to the Congress of the United States, which by an Act of June
25, 1868, [Footnote 2] "to admit the States of Georgia &c., to representation in Congress," reciting that whereas the people of Georgia, North Carolina &c., had in pursuance of the already quoted act of March 2, 1867,
"framed constitutions of state government which are republican, and have adopted said constitutions,' enacted that each of the states of North Carolina, Georgia, &c., shall be entitled and admitted to representation in Congress as a state of the Union when the legislature of such state shall have duly ratified the amendment to the Constitution of the United States . . . known as 'Article Fourteen:"
Provided that the State of Georgia shall only be entitled and admitted to representation upon this further fundamental condition that the first and third subdivisions of section seventeen of the fifth article of the constitution of said state except &c., shall be null and void, and that the General Assembly of said state by solemn public act shall declare the assent of the state to the foregoing provision.
The state having afterwards ratified the Fourteenth Amendment and complied with other requirements, was by an act of Congress passed July 15, 1870, [Footnote 3] declared entitled to representation in Congress.
The Constitution of Georgia being thus approved by Congress and operative, the Legislature of Georgia, on the 3d of October, 1868, passed
"An act to provide for setting apart a homestead of realty and personalty and for the valuation of said property, and for the full and complete protection and security of the same to the sole use and benefit of families, as required by section first of article seventh of the constitution and for other purposes."
The language of this act was the same as the provision of the constitution. Under the act, all the land of Hart, which altogether, it will have been observed, was worth about $1,400, was set apart to him and his family as a homestead.
On a requirement by Gunn to the sheriff of the county, one Barry, that he should levy on the 277 1/2 acres, Barry refused
to do so, upon the ground that they had been set off to Hart and his family under the act of 1868, and on a petition for mandamus against Barry to compel him to make the levy, the courts of Georgia, including the supreme court, having decided that the refusal of the sheriff was right, the case was brought here.
The question involved was of course the constitutionality as against Gunn, who had got his judgment before its passage, of the new exemption