Dissenting. I feel.it my duty not to al. low this case to pass with a merely silent dissent on my part. As I cannot place the same construction upon the several provisions of the statute to which reference has been made, and which control the decision of this case, as my brethren have felt compelled to do, it is probably better that I should state a few of my reasons, so that if further legislation be necessary to promote and secure the objects of the statute attention may be directed to the subject.
In order to arrive at the intention of the legislature ■ in the passage of the statute in question, it is proper to refer to the history of the homestead provision. The first Constitution which was presented to the people of this State (then territory) contained a provision securing to the debtor, from forced sale, a homestead. This provision was most thoroughly discussed before the people, and although that provisj ion, in the form in which it was proposed, fell with the rejected Constitution; yet the next convention called immediately thereafter, not only recognized the principle of exemption, but made it mandatory upon the legislature to provide “ wholesome laws exempting a reasonable amount of property from seizure or sale, for the payment of any debt or liability hereafter contracted.” No former contracts were to be interfered with ; but after the passage of such laws, all contracts would be made in view of the exemption allowed, and without any hope or expectation of making the property thus exempted, a re*762source out of which fulfilment of the contract could be enforced ; and no reliance could be placed upon any interference with the personal liberty of the rjebtoj- • for imprisonment for debt was abolished, or rather prohibited, by the Constitution. The principle of ..exemption was therefore made, a fundamental article, and recognized as one among the primary rights of the citizen to be protected and secured. It would seem, therefore, that all legislation in compliance with this constitutional provision, should be liberally construed, in view of the objects sought to be accomplished.
That portion of chapter 102 of the Revised Statutes, under the head “ of exemption of property from execution,” &c., was doubtless enacted in obedience to the mandate of the Constitution before referred to, and comprises sections 51 to 57, both inclusive.
Section 5, of chapter 102, provides as follows :
“ All judgments hereafter rendered in any court of record, shall bind, and be a charge upon the lands, tenements, real estate and chattels real, in every county where the record, or a certified transcript thereof shall be filed, of every person against whom any such judgment shall be rendered, which such person may have in such counties, at the time of docketing such judgments, or which such person shall acquire at any time thereafter, and such estate and chattels Teal, shall he sold on execution, to he issued on such judgment?
Here the power to sell on execution is co-extensive with the lien created. Both, it must be remembered, are creations of the statute. At common law judgments are not liens upon real estate, nor at common law could real estate be sold on execution. The same statute that creates the lien, gives also the power *763to sell. Whenever and wherever the statute extends the lien, it declares that such lands and chattels real, that is, all those on which the lien can fasten, may be sold on execution. Both are statutory and reme-dial provisions, created by the same section and go hand in hand. Had the power to sell real estate on execution existed at common law, and this statute been passed to create a lien the better to secure the property during the process of issuing and' levying execution, there might perhaps be some reason for giving a wider scope to the lien, than to the immediate power to sell- But such is not the case.
Section 51 of the same chapter provides : “ A homestead consisting of any quantity of land not exceeding forty acres, used for agricultural purposes, and the dwelling house thereon and its appurtenances, to be selected by the owner thereof, and not included in any town plot, or city, or village, or instead thereof, at the option of the owner, a quantity of land not exceeding in amount one fourth of an acre, being' within a recorded town plot, or 'city or village, and the dwelling house thereon and its appurtenances, owned and occupied by any resident of the State, shall not he subject to forced sale on execution, or any other finalprocess from a cou/rt, for any debt or liability contracted after the first day of January, in the year one thousand eight Imndred and forty-nvneV
Now in view of Jihe constitutional provision above referred to ; in view of the history which led to its adoption; and in view of the various provisions of the statutes and of the order in which they are arranged, can we fail to perceive that the real intent and object in adopting the Constitution in this respect, and of the legislature in enacting the statute *764unde1' consideration was, that the homestead should be considered by all parties thereafter’, in the management of business, in the making of contracts, in. the givjng 0f credit, &c., as a- sacred thing, independent and apart from the incidents of trade and the casualties of business ? Can it be possible, that in view of the conflict of opinion which had led to the final adoption of the principle of exemption, the legislature should so have arranged its details, as to make the homestead of the unfortunate debtor his prison ; that the beneficent intention of the Constitution and the law enacted in conformity therewith, was only an ingenious device to confine all the energies of the man to the narrow limits of his homestead ? That there he must for all coming time, confine his energies» or at least, that must be forever the small center around which he must move continually, and which could at best afford him an exceedingly circumscribed orbit ? for as soon as he should change his quarters, ■the fangs of a judgment lien held in reserve and masked' by the law, would fasten upon his home "What is this more or less than substituting the homestead for the old prison limits, mitigated only in form ?
I do not, by any means, wish to be understood as saying that the construction which has been put upon the several provisions of the statute under consideration was intended to, or necessarily has, this effect; but it is difficult for me to avoid the conclusion that such is necessarily the consequence of such construe - tion.
If the lien of a judgment creditor necessarily fastens upon the homestead of the debtor, he is unavoidably riveted to that particular locality, unless he foregoes the advantages of the statute; unless he abandons *765all those advantages by removing elsewhere, or remains to enjoy them at the sacrifice of that manly enterprise and energy, which it was the beneficent object of the Constitution and the law to preserve for the benefit of the individual, the family, and above all, the State.
Again, the husband cannot mortgage the homestead thus secuied to him by the statute, without the consent and joining of his wife. But if the construetion here assumed be correct, he can contract debts ; judgments can be recovered against him; nay, he may, without the, consent of his wife, at any time confess judgment, and if such judgment, be a lien upon the homestead, all the safeguards of the statute are made to depend upon the locomotive caprice or necessity of the husband on the one hand,.or his inability to obtain credit or contract debts, on the other. If a mortgage cannot become a lien without the consent of the wife, it is difficult to perceive how a judgment rendered upon a debt to which the wife never assented, can be a lien- upon the homestead in which the statute gives her such a peculiar interest, as she is under the control of her husband, and by refusing to abandon the homestead with him at his request or command, might subject herself to a charge of desertion, in addition to a thousand other evils.
I barely give utterance to these suggestions, not merely as reasons why I cannot concur in the opinion of a majority of the court just rendered, but also to suggest to the law-making power a few reasons why if the present legislation be defective, it should be remedied.
I would have concurred in the judgment of the court if I could. I would have silently dissent *766if I could have thought my duty could have been so discharged. It has seemed to me, however) after much reflection, that I ought to enter on record # 7 ° ¿be suggestions which I have above made, not as an ai’gument to sustain the view I have taken of the statute, but to invite further legislation, if what we have now is not adequate to the end sought to be accomplished.