CASE No. 735 | S.C. | May 26, 1879
The opinion was delivered
We gather from the brief, which contains an imperfect statement of the proceedings in the case, that the decree of foreclosure is incomplete. The mortgage, in terms, excluded from the premises described in it a homestead reserver by the mortgagor, but such homestead is not defined-as to its limits. It was necessary, therefore, that the extent of the homestead should be judicially ascertained before the judgment was complete. The extent of the homestead should have been ascertained in the manner in which all other facts are ascertained by a court of ■equity, either by testimony taken before the court or upon a reference to a master or referee, as the case may be. The act of 1873 prescribes the mode of setting apart the homestead where it is claimed out of property sought to be subjected to process, but does not preclude the court before which a question of homestead arises from determining that question in the mode employed for determining other questions of law or fact. We infer that the parties in the present case thought themselves bound to proceed in the mode pointed out by the statute. In this they were in error, and the order appointing commissioners, and all previous proceedings for the same purpose, must be set aside, and the cause remanded for the purposes already indicated.
Proceedings set aside.