41 S.C. 304 | S.C. | 1894
The opinion of the court was delivered by
Most of the matters out of which this case arises were once before in this court, and in the report of that case it appears that the plaintiffs, being creditors of Francis Marion Pope, sued him to judgment, and under the execution in the case, had a house and lot of the judgment debtor in the town of Ninety-Six levied and sold, and at the sheriff’s sale, on September 2, 1889, bid off the lot and took
On January 6, 1892, A. J. Salinas & Sons intervened in the action by petitions, and asked to be made parties to the action. Judge Hudson ordered them made parties defendant, and gave them leave to answer the complaint. An answer was filed by them within the time allowed, and the plaintiffs gave notice of a motion to strike out the answer, on the ground stated in that notice. This motion was heard by Judge Aldrich, but refused. Upon the call of the case at the January term, 1893, at Abbe-ville, the parties consented and agreed in writing that a jury trial be waived, and that all the issues in the cause be heard and determined by the court. The answer of the defendants set up several defences — first, a general denial; second, purchasers for valuable consideration without notice, as they held a mortgage of the said house and lot from Mattie L. Utsey, and under judgment of foreclosure against her, purchased the same at the master’s sale, and received titles from him on January 6, 1892; third, a claim of homestead; and fourth, a claim for betterments.
His honor, Judge Izlar, heard the whole case as one distinctly legal in character; and after a full, clear, and exhaustive consideration of the whole subject for the second time (he pronounced the first decision as well as the last), he rendered a
From this decision the defendants, A. J. Salinas & Sons, appeal to this court upon numerous exceptions, sixteen in number, as follows, viz: I. Because his honor erred in finding that the
It is the judgment of this court, that, in so far as all the other questions in the case are concerned, the conclusions reached by the Circuit Court are affirmed; but in so far as the question of homestead is concerned, the judgment below must be reversed, and the cause remanded to the Circuit Court for the purpose of having that question considered and decided as above indicated.