Messrs. Daniel W. Rountree, Clifford L. Anderson, and W. H. Terrell for plaintiff in error.
[231 U.S. 215, 217] Mr. Louis Marshall for defendant in error.
Mr. Justice Holmes delivered the opinion of the court:
This is a suit to recover an interest in land sold on execution against Godfred Kener, and held by the defendant in error under that sale. The plaintiff is the representative of one of Kener's heirs. The facts are these. A judgment was recovered upon a bill of exchange against Godfred Kener in 1858, and execution issued in 1873; in 1878 he was adjudged a bankrupt, and returned the holders of the judgment among his creditors, but they did not prove their claim. In the same year this land was set aside in due form to Kener as his homestead exempted by the state Constitution of 1868 and the bankruptcy act then in force. Rev. Stat. 5045. In June, 1879, he died, and in December, 1879, the execution was levied and this land was sold. The sale was valid unless the bankruptcy act interfered. The trial court entered judgment for the defendant, and the judgment was affirmed by the supreme court of the state. 135 Ga. 730, 70 S. E. 245.
The bankruptcy act of 1867 [14 Stat. at L. 517, chap. 176], as amended by the act of March 3, 1873, chap. 235, 17 Stat. at L. 577, Rev. Stat. 5045, preserved, within a limit, exemptions under state laws, and provided that such exemptions should be valid against debts contracted before those laws, and against liens by judgment of any state court. The plaintiff bases his claim upon this act. But in Gunn v. Barry, 15 Wall. 610, 21 L. ed. 212, argued and decided (March 31, 1873) just after the amendment of March 3, it was held that the Georgia Constitution could not exempt property from existing liens, and that Congress could not give that Constitution greater effect. See also Re Deckert, 2 Hughes, 183, Fed. Cas. No. 3,728; Re [231 U.S. 215, 218] Rahrer, 140 U.S. 545, 560 , 36 S. L. ed. 572, 576, 11 Sup. Ct. Rep. 865. In Re Shipman, 2 Hughes, 227, Fed. Cas. No. 12,791, it seems to have been supposed that the act of 1873, wrongly called of 1874, was passed to meet Gunn v. Barry, in the teeth of the declaration that such an attempt would be invalid. But that was a mistake.
Of course, if the Constitution of 1868, and statutes based upon it, should be construed as not attempting to disturb thenexisting liens, the act of Congress hardly would be read as purporting to give a greater scope to the state laws. The Georgia decisions since Gunn v. Barry agree that in cases like the present the lien remained. Bush v. Lester, 55 Ga. 579. Whether the result be reached by construction of the state laws, by construction of the former bankruptcy act, or on constitutional grounds, it comes to the same thing, and the judgment below was right.