concurring:
I desire to say that I concur in the judgment of the court in this case, but not in the entire opinion. I hold that the homestead is one — granted to the party by one act — that of the ordinary. In like manner the exemption of personalty is one act. The two together constitute one estate, set apart to the head of the family in trust for the family. It is made exempt by the constitution from all debts except taxes, pur*372chase money, etc. The several acts of the legislature on the subject require the utmost good faith on the part of him who tabes the homestead and the exemption. He is required to make out a complete schedule of personalty owned by him, and provision is made with respect to the schedule so made out. After his exemption of $1,000 00, the balance is to be sold for the benefit of creditors: Code, section 2005.
I analogize it very mucli to the old insolvent acts in regard to the discharge of the debtor from prison. No fraud of any sort will be tolerated. I think it would be a great- fraud, a heinous wrong, for a party to cause to be exempted one hundred bushels of corn, or one thousand pounds of bacon, for which he had not paid at the time of the exemption, and then to consume this bacon and corn, and leave the seller remediless. Or, in the case at bar, I think it would be an equal fraud for him to use the gin until it became worthless, or to sell it and pocket the money, and the seller of the gin have no remedy, though it should appear that it was worn out in ginning the very cotton in dispute, or sold for another gin, or for money and the money consumed by the family. Thus I think I show that cases may arise where it would work great wrong to lay down the principle approved by a majority of the court, that “inasmuch as the cotton gin had not been paid for, it was subject to the plaintiff’s judgment for the purchase money due therefor, but not the other property eontained in the homestead exemption.” I hold that all the exempted property is liable for the purchase money of any part, just as all is liable for taxes, or money borrowed for improvements. The entire estate is exempted on the condition that all is paid for, and if any part be not paid for, the whole is not exempted according to law until such part be paid for.
The constitution admits of this interpretation. It exempts “realty to the value of $2,000 00 in specie, and personal property to the value of $1,000 00 in specie.” It exempts this whole property, or as much as the debtor has, to be set apart, free from all debts, “ except for taxes, money borrowed and expended in the improvement of the homestead, or for the *373purchase money of the same, and for labor done thereon, or material furnished therefor, or removal of encumbrances thereon.” What taxes? Taxes on all. What purchase money? Purchase money for all. What property is exempt? The whole of it. Is the laborer to have a right to go only upon the house he builds or the fence he erects or the field he clears or cultivates ? I think not. I think that a fair interpretation of the provision of the constitution and of the laws framed thereon, make all the homestead and exemption liable for the purchase money of any part: Constitution ; Code, sec. 5135. The act is but a transcript of the constitution : Code, section 2002. Immediately following this last section are many sections which show that the utmost good faith must be observed by tire debtor, particularly section 2005. This good faith is broken if he conceals any of-his personal effects; how much more if he attempts to exempt what he has never paid for, and to which he cannot conscientiously claim title. Nobody is hurt by the construction I put on the constitution, and justice is done.
Neither the constitution, nor the act passed to carry it into effect, cuts up. the homestead and exemption into separate parcels, making one parcel liable for one' debt and another for another debt, but they both treat the whole as one trust estate, exempt from all the liabilities of the head of the family, except a particular class of debts, and for this class of debts I think the whole trust estate is liable. It may be, that in the case at bar, no particular harm would be done, even if the case were not decided with the creditor upon other grounds. It may be that the gin is still in possession of the debtor, and not worn out or put out of the way. The record is silent as to these points in this case; but the principle decided is of great practical importance, and I cannot give my assent to it,
I need not say in what high esteem I hold the legal opinions of my associates on the bench; nor need I say how readily I yield to their judgments when I can conscientiously do so. But in this matter my own convictions, however erroneous they may be, are clear and strong, and I feel it a *374duty to express my dissent from this part of the decision, that only the particular item of the homestead and exemption not paid for is liable for the purchase money thereof. In my judgment, all is liable until all is paid foi\