The Homestead Act
The Constitution of Virginia
Updated March 5, 2016
John Gilliam and his mother, Catherine E. Gilliam, both of Powhatan County, VA sought relief under the Homestead Act.
Homestead and Other Exemptions.
Sec. 1. Every householder or head of a family shall be entitled, in addition to the articles now exempt from levy or distress for rent, to hold exempt from levy, seizure, garnisheeing, or sale under any execution, order or other process issued on any demand for any debt heretofore or hereafter contracted, his real and personal property, or either, including money and debts due him, whether heretofore or hereafter acquired or contracted, to the value of not exceeding two thousand dollars, to be selected by him: provided, that such exemption shall not extend to any execution, order or other process issued on any demand in the following cases:
1st. For the purchase price of said property or any part thereof.
2d. For services rendered by a laboring person or a mechanic.
3d. For liabilities incurred by any public officer or officer of a court, or any fiduciary, or any attorney at law, for money collected.
4th. For a lawful claim for any taxes, levies or assessments accruing after the first day of June, 1866.
5th. For rent hereafter accruing.
6th. For the legal or taxable fees of any public officer or officers of a court hereafter accruing.
Former constitutions contained no provision for an exemption, but by Act of April 29, 1867, a homestead in real estate was allowed, to contain not more than one hundred and sixty acres, nor to exceed twelve hundred dollars in value, upon which the person claiming the exemption was required to reside. This act was abrogated by section 6 of this Article.
The provisions of this Article appear not to be self-executing, and the exemption provided for depends on legislative action, and must be acquired according to regulations and conditions prescribed by the legislature in conformity with the fifth section following. See article by Prof. M. P. Burks on "Homestead Exemptions," 2 Va. Law Reg. 167.
Who May Claim Exemption—The exemption may be claimed by a "householder or head of a family." These are mutually explanatory and interchangeable terms, and signify one who occupies such a relationship towards persons living with him that they have a legal or moral right to look to him for support. Calhoun v. Williams, 32 Gratt. 18. But since the exemption is for the benefit of the householder as well as of his family, if his family dies leaving him the sole survivor, the exemption, if acquired while he was a householder, continues for his benefit. Wilkinson v. Merrill, 87 Va. 513, overruling Calhoun v. Williams, supra, on this point. By legislative authority, moreover, the exemption, if claimed by the householder, may be continued after his death for the benefit of his widow and minor children; or, if he died without having claimed it, they may be authorized to claim it in his estate. But the exemption applies only as against creditors, and if he died leaving no debts there can be no exemption, and his heirs take his estate subject to the dower and distributive rights of his widow. Hatorf v. Wellford, 27 Gratt. 356; Helm v. Helm, 30 Gratt. 404.
The exemption cannot be claimed by one who is not a citizen of the State; but the privilege is not lost by absence from the State without a change of domicile, and the burden of proving a change of domicile, is on him who alleges it. Lindsay v. Murphy, 76 Va. 428.
Where a fraudulent conveyance is annulled at the suit of creditors, the grantor, if a householder, is not estopped from claiming his exemption in the property conveyed. Shipe v. Repass, 27 Gratt. 716; Boynton v. Neal, 31 Gratt. 456; Marshall v. Sears, 79 Va. 49; Hatcher v. Crewe, 83 Va. 371; Mahoney v. James, 94 Va. 176.
When the privilege has been once fully exercised it is exhausted, but an original claim may be supplemented by additional claims until the aggregate equals two thousand dollars. Oppenheimer v. Howell, 76 Va. 218; Hatcher v. Crewe, 83 Va. 371.
Scope of the Exemption—The exemption applies by the terms of this section against "any demand for any debt heretofore or hereafter contracted," except the classes of debts named in the proviso; but in the Homestead Cases, 26 Gratt. 266, the provision for an exemption, in so far as it was retroactive and applied to debts contracted before the Constitution went into operation, was held to be invalid on the ground that it impaired the obligation of such debts. See also Bussell v. Randolph 26 Gratt. 705.
The exemption applies only against contractual obligations, and does not apply against a fine imposed for violation of the penal laws, Whiteacre v. Rector, 29 Gratt. 714; or against a demand for damages for a breach of promise to marry, which is not a debt contracted, but a quasi tort, Burton v. Mill, 78 Va. 468.
Under the first clause of the proviso, property not paid for cannot be held exempt from liability for the purchase price; and, when such property is embraced with other property in a homestead deed, the onus of distinguishing between the two classes of property is on the person claiming the exemption, and if he fails to distinguish between them the deed will be held void in favor of creditors as to all the property embraced in it. Rose v. Sharpless, 33 Gratt. 153. Quaere, can the exemption be claimed in a shifting stock of goods?
The term "laboring man" in the second clause of the proviso includes a mail carrier. Farinholt v. Luckhard, 90 Va. 936. It is now provided by statute that this term shall include all householders who receive wages for their services. Acts 1887-88 p. 423.
The debts excepted from the exemption in the third clause of the proviso, namely, "liabilities incurred by any public officer, &c," embrace the liability of a collector of taxes and of the sureties on his official bond. Com’lth v. Ford, 29 Gratt. 683.
Until the period of exemption expires creditors cannot acquire liens on the exempted property, and the householder may alienate the same free from the lien of judgments recovered, or executions or other process sued out against him. Williams v. Watkins, 92 Va. 680. But the lien of a judgment recovered against a householder before the exemption is claimed is not displaced by the exemption deed; and though it cannot be enforced during the continuance of the exemption, when the exemption ceases, it has priority over a subsequent deed of trust. Blose v. Bear, 87 Va. 177.
Expiration of the Exemption—After the expiration of the exemption the property exempted may be subjected for debts of the householder, Hanby v. Henrtze, 85 Va. 177; but creditors cannot require bond to be given for the forthcoming of the corpus of the homestead at the expiration of the homestead period. Mahoney v. James, 94 Va. 176. But see Clendenning v. Conrad, 91 Va. 410.
Sec. 2. The foregoing section shall not be construed as subjecting the property hereby exempted, or any portion thereof, to any lien by reason of any execution levied on property which has been subsequently restored to the defendant, or judgment rendered or docketed on or after the 17th of April, 1861, and before the 2d day of March, 1867, for any debt contracted previous to the 4th day of April, 1865, except debts of the character mentioned in either of the above first three exceptions.
The "property hereby exempted" is the property selected and set apart by the householder by his homestead deed; and is the same property referred to in the following section as the "property aforesaid." White v. Owen, 30 Gratt, 43.
Sec. 3. Nothing contained in this article shall be construed to interfere with the sale of the property aforesaid, or any portion thereof, by virtue of any mortgage, deed of trust, pledge, or other security thereon.
The words "any mortgage, deed of trust, &c," embrace all mortgages or other securities whether given before or after the deed of homestead, and whether given for antecedent or subsequent debts. White v. Owen, 30 Gratt. 43. In this case "other security" was said to mean a security of like character with mortgages, deeds of trust and pledges, previously mentioned, that is, a security created by the act of the householder himself; but in Kennerly v. Swartz, 83 Va. 704 the court, making no reference to White v. Owen, held that a judgment recovered against the debtor before he had acquired the status of a householder is a security within the meaning of this section, and that the lien of the judgment is not displaced by the exemption deed, but is paramount to it.
Sec. 4. The general assembly is hereby prohibited from passing any law staying the collection of debts, commonly known as "stay laws;" but this section shall not be construed as prohibiting any legislation which the general assembly may deem necessary to fully carry out the provisions of this article.
A law requiring an officer selling personal property for a debt contracted before April 10, 1865, to sell on a credit of twelve months, when requested by the debtor, is not a stay law within the meaning of this section. Garland v. Brown, 23 Gratt. 173.
Sec. 5. The general assembly shall, at its first session under this constitution, prescribe in what manner and on what conditions the said householder or head of a family shall thereafter set apart and hold for himself and family a homestead out of any property hereby exempted, and may, in its discretion, determine in what manner and on what conditions he may thereafter hold, for the benefit of himself and family, such personal property as he may have, and coming within the exemption hereby made. But this section shall not be construed as authorizing the general assembly to defeat or impair the benefits intended to be conferred by the provisions of this article.
This section makes it incumbent on the legislature to prescribe in what manner and on what conditions the exemption may be claimed; and, unless the regulations and conditions prescribed by the legislature are complied with, or, it would seem, if no regulations and conditions are prescribed, there can be no exemption. There is no limitation on the power of the legislature except that it may not defeat or impair the benefits intended to be conferred by this section. Wray v. Davenport, 79 Va. 19. It may authorize a waiver of the exemption, Reed v. Union Bank, 29 Gratt. 719; Linkenhoker v. Detrick, 81 Va. 44; and it may provide that the real estate set apart as exempt shall not be mortgaged, encumbered, or aliened by the householder, if a married man, except by the joint deed of himself and his wife, and in accordance with this provision a deed by the husband alone conveying such property is wholly void. Va. & Tenn. Coal & Iron Co. v. McClelland, 2 Va. Sup. Ct. Sep. 366.
Prof. M. P. Burks, in his article on Homestead Exemption, 2 Va. Law Reg. 167, points out that a distinction appears to be made in this section between "a homestead" and an exemption in personal property, it being made compulsory on the legislature to provide for a homestead, while it is left entirely discretionary as to any provision for holding personal property exempt.
While the legislature cannot impair or abridge the right of exemption secured by the Constitution, it may enlarge such right and confer it upon persons not specifically mentioned in the Constitution; and in Hatorf v. Wellford, 27 Gratt. 356, it was held that the legislature had the power to confer the right upon the widow and minor children of a householder who had died without claiming the exemption. But such right can be given only as against creditors, and not as against heirs, for where there are no debts there is no exemption. Helm v. Helm, 30 Gratt. 404.
Sec. 6. An act of the general assembly, entitled "an act to exempt the homesteads of families from forced sales," passed April 29, 1867, and an act entitled "an act to stay the collection of debts for a limited period," passed March 2, 1866, and the acts amendatory thereof, are hereby abrogated.
Sec. 7. The provisions of this article shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out.
Sec. 8. The rights of ecclesiastical bodies in and to church property conveyed to them by regular deeds of conveyance shall not be affected by the late civil war, nor by any antecedent or subsequent event, nor by any act of the legislature purporting to govern the same, but all such property shall pass to and be held by the parties set forth in the original deeds of conveyance, or the legal assignees of such original parties holding through or by conveyance, and any act or acts of the legislature in opposition thereto shall be null and void.
Heirship of Property.
Sec. 9. The children of parents, one or both of whom were slaves at and during the period of cohabitation, and who were recognized by the father as his children, and whose mother was recognized by such father as his wife, and was cohabited with as such, shall be as capable of inheriting any estate whereof such father may have died seized or possessed as though they had been born in lawful wedlock.