13 S.C. 355 | S.C. | 1880
The opinion of the court was delivered by
On January 30th, 1869, Sarah Watt obtained judgment in the Summary Process jurisdiction of the court for Orangeburg county against John C. Bowe on a cause of action arising on a contract made before the adoption of the constitution of 1868. Under this decree execution was issued, which subsequently lost its active energy and was renewed by scire facias by order of Judge Beed, October 18th, 1876. A second execution was issued thereon under which the plaintiff levied upon a tract of land of five hundred acres on “Snake Swamp,” fifteen miles from Orangeburg, as the property of Bowe, the defendant in execution, and had the same sold by the sheriff. At this sale the land was purhased by Norman A. Bull, the appellant, who received sheriff’s .title for the same, and he brings this action to recover the land from the said Bowe and his tenants in possession.
At this sheriff’s sale Bowe had public notice given that he claimed the land as his “ homestead ” which had been assigned to him under the constitution and laws of this state. In the trial of tbe case that was his principal defence and the following facts were disclosed:
There were other judgments in the sheriff’s office against Bowe, but it will not be necessary to refer to more than three of them. That of J. M. Copes for $501.91, entered February 13th, 1867, and that of F. M. Bogers for $2812.31, by confession, and entered March 20th, 1867, and that of Case & Bull for $322.72, entered March 22d, 1867. The execution of Copes was levied, and on January 27th, 1869, three days before Sarah Watt obtained her decree, appraisers, appointed for the purpose, signed the paper which is printed in the brief, setting off to Bowe, as his homestead, the five hundred acres of land now sued for. The return was not marked, filed or recordéd until March 12th, 1877, and had, probably, been in the record in the case of Copes for most of the intervening time. When it was placed on the record does not appear. Briggs, who was sheriff at the time, says: “ I kept it for a while, and then I think I returned it to the sheriff’s office for recording.” The land assigned as homestead was not sold at that time (afterwards,
Upon these facts the case was submitted to the jury, who, under the direction of the judge, found a verdict for the defendant. The judge was requested by the counsel on both sides to charge certain propositions of law, which he did, and the case comes up on exceptions to his rulings.
We will first dispose of the exceptions of the defendant. His first exception was, “ that in order to make out a title to land purchased at sheriff’s sale, the judgment and execution under which the sale was made must be produced; and in order to prove a judgment obtained under summary process, it was not only necessary to produce the entry of the presiding judge on the docket, but the original entry of the decree in the booh containing the minutes of the court; and this proof not having been made, the plaintiff has not made out his title and the verdict of the jury must be for the defendant.” Upon which the judge charged “ that in this case there was sufficient evidence of the judgment upon which the execution issued to sustain the sale.”
We find no error in this charge. No separate judgment could be produced for the reason that the decree was rendered in a Summary Process, in which no formal judgment was required by law. The original entry of the decree on the docket in the handwriting of the judge who rendered it, and the fact that the execution had been renewed against the defendant without objection, was sufficient. Douglass v. Owens, 5 Rich. 534.
Defendant’s second exception was “ that if the jury believe, from the evidence, that the execution in the case of Sarah R. Watt v. John C. Rowe was never returned by the sheriff to the clerk for renewal or otherwise, the subsequent proceedings for the renewal of the said execution were irregular and void; and the sale made under the renewed execution in said case of the
That brings us to the defence of Bowe and the exceptions of the plaintiff. These may be considered as condensed into the third and fifth. The third exception is “ that the constitutional provisions and the statutes of this state as to homestead are void as to contracts pre-existing before April 15th, 1868.” The fifth exception is, “that the lapse of time and laches of plaintiff cannot operate to make that valid which was void ab initio.”
Several cases involving the same or kindred questions are now before the court, and for that reason, and because wo are desirous of supporting the provision for homestead, especially as to old debts, if it can be done property, we have considered this case ■with care and have gone more fully into the reasons for -the opinion than otherwise would have been necessary.
The homestead exemption is of modern origin and exclusively American. Most of the states of the Union have adopted homestead laws since 1839, when Texas, then a young republic inviting settlement, led the way. These laws in no two states are in all respects the same. The difference in these enactments has prduced want of symmetry in the decisions, but the leading idea in most of them is that the right of homestead in. the debtor is neither a lien, encumbrance nor an estate, but a negation of the ordinary remedies of the creditors as to certain property for certain purposes — an “exemption,” dealing merely with the means of enforcing the contract and leaving the title of the property untouched.
Several irregularities were alleged against the claim of the homestead in this case, growing out of the details of this proceeding; as, for instance, that the land assigned was not “the family homestead of the defendant,” who never lived on it, but miles away at Orangeburg; that “ the return ” of the appraisers is without plat or metes and bounds, and is too vague; that it was never “ returned for record ” until the levy under which the land was sold by the sheriff, &c.; but we do not think it neces
The plaintiff purchased under the execution of Sarah Watt, and the sheriff's deed conveyed to him all her rights. In this action for the land the inquiry is narrowed down to the simple question, whether Sarah Watt was barred by the assignment, either under the law at the time of the assignment, or by lapse of time, or by any subsequent acts of her own up to the day of sale. We will endeavor to keep these points from running into each other, and consider first the rights of the parties as they stood under the law on the day of assignment, reserving for consideration hereafter the alleged effect of the acts of the plaintiff in execution.
The constitution (Art. II, § 32,) declares “ the family homestead of the head of each family residing in this state, such homestead consisting of dwelling-house, out buildings, and lands appurtenant, not to exceed the value of $1000, and yearly product thereof, shall be exempt from attachment, levy or sale, on any mesne or final process issued from any court. * * * Provided, that no property shall be exempt from attachment, levy or sale for the payment of obligations contracted for the purchase of said homestead or the erection of improvements thereon. * * * It shall be the duty of the general assembly, at their first session, to enforce the provisions of this section by suitable legislation.”
In 1868 the general assembly passed “ An act to determine and perpetuate the homestead,” which provided that “the sheriff or other officer executing said process shall cause a homestead, such as said person may select, not to exceed the value of $1000, to be set off to said person in the manner following, to wit: He shall cause thi’ee appraisers to be appointed, one to be named by the creditor, one by the debtor, and one by himself, who shall be discreet and disinterested men, resident in the county, and shall be sworn by a justice of the peace to impartially appraise and,set off by metes and bounds a homestead of the estate of the debtor, such as he may select, not to exceed the value of $1000;
In 1869 the general assembly passed “ An act to punish sheriffs and other officers for violating the homestead.” 14 Stat. 172.
In 1872 was passed the “Act to reduce all acts and parts of acts to determine and perpetuate the homestead into one act, and to amend the same,” which, as to the manner of laying off homestead, changes the law of 1868 only in allowing for complaint “ thirty days after return for a record in court.” 15 Stat. 229.
In 1873 was passed an “Act to revise and amend the homestead law,” which substantially re-enacted the act of 1872 as to the manner of laying off homestead, only adding that the return should be made by the appraisers “ within ten days after the assignment and set-off is made.” 15 Stat. 369.
These are the provisions of our constitution and laws upon the subject of homestead. They were firmly enforced according to their terms by this court, as appears from the cases In re Kennedy, 2 S. C. 216, and House v. House, 2 S. C. 229. But iu December, 1872, the Supreme Court of the United States, iu the case of Gunn v. Barry, 15 Wall. 610, held that so much of the constitution of the State" of Georgia as gave a homestead exemption against debts in existence at the time of its adoption, was void. The judgment declares that the legal remedies for “ the enforcement of a contract which belong to it at the time and place where it is made, are a part of its obligation. A state may
This is undoubtedly the law, and our courts, conforming their decisions to the principles announced in that case, have decided that so much of our constitution and laws as purport to allow a homestead against a debt older than the constitution, are in violation of the constitution of the United States and void. Cochran v. Darcy, 5 S. C. 125; Ex parte Hewett, 5 S. C. 409.
This created a new state of affairs, and the difficult duty is devolved upon the court of deciding the rights of parties according to principles not in the minds of those who made the laws, and which, of course, contain no provision applicable to the case.
Although it was not known at the time Rowe’s homestead was set off in 1869, the same principles were applicable then which have been since declared. If the question of assigning the homestead in this case were before us to-day, it is clear that it could not be allowed. De La Howe v. Harper, 5 S. C. 470. In conformity with these latter cases and the principle on which they are founded, we are bound to interpret the constitution and laws as if the provision for allowing homestead exemption against debts then in existence were spunged out, and in place thereof another exception embracing such debts were added to the proviso, which declares “ that no property shall be exempt from levy and sale for taxes, or for payment of obligations contracted for the purchase of said homestead,” &c. Judge Cooley lays it down in his Constitutional Limitations, p. 188, “that if an act is unconstitutional in part, it is to be construed as if the unconstitutional part were expressly excepted.” We are therefore constrained to hold that the assignment of homestead to Rowe in 1869 was unauthorized as to the debt of Sarah Watt, which must be considered as excepted and beyond the jurisdiction to assign homestead, and such assignment as to her debt was absolutely void.
If the assignment as to the debt 'of Sarah Watt was void on
■ The law upon this subject is condensed by “ Thompson on Homestead and Exemptions,” Section 230, as follows: “ It is scarcely necessary to state, as a general rule, that a dedication of homestead, in whatever form, does not have the effect of withdrawing it from liability on account of any pre-existing debt, liens, conveyances or charges which otherwise would have bound
After the assignment there may be a presumption that it is valid. This, however, does not make it “ voidable,” good until set aside by a direct proceeding for that purpose, but good until the important fact is shown. As soon as it appears that there was a privileged debt, the “prima facie” is removed, and the whole proceeding quo ad hoc is void. This fact may appear in any proceeding, direct or collateral, for what is absolutely void may be disregarded as nullity whenever and wherever it is encountered. Hill v. Robertson, 1 Strob. 1; Singleterry v. Carter, 1 Bail. 467; Williamson v. Farrow, 1 Bail. 611; Thompson v. Tolmie, 2 Pet. 169; 1 Tidd’s Pr. 937.
We see no reason why Bull, the purchaser, may not maintain his direct action for the land. Our court has held that when the assignment of homestead has not been “returned for-record in court,” under the act of 1868, it is not exempt from levy and sale, and the purchaser at sheriff’s sale may disregard it and recover the land from the defendant in execution notwithstanding his claim of homestead. Ryan v. Pettigrew, 7 S. C. 146; Choice v. Charles, 7 S. C. 171. This case is much stronger, for here, as to this creditor, the whole proceeding is void.
It may seem that this view is in conflict with the case of McKeown v. Carrol, 5 S. C. 75, but if that case is carefully examined it will be found that the point decided is not inconsistent with what is here declared to be the law., In that case the creditor had a judgment older than the constitution. Homestead was allowed and he did not complain but levied and sold what he assumed to be the remainder in the property assigned as
Assuming that defendant Rowe had no right to homestead ’ as against the debt of Sarah Watt, and that the mere ministerial act of assignment gave no additional rights and was void as to her, does the evidence show that she did or omitted to do anything to bar her right to proceed against the land ? The doctrine of estoppel applies to constitutional as well as other rights and to proceedings absolutely void as well as those merely voidable. The assignment as a fact was made. Rowe retained possesssion of the land assigned while his other property was sold to pay his debts. Sarah Watt was probably aware of this assertion of claim adverse to her right, and she took no step to controvert it from 1869 until 1877. Should this non-action enure to the benefit of the defendant and now estop her or her alienee ? The law does not require one to contest for his rights, but if he omits to do so for a certain time, it imposes the penalty, in.the form of the statute of limitations, of withholding the means of enforcing them. The statute of limitations is not pleaded and does not apply here. But without reference to the statute, one may undoubtedly waive his rights either by voluntarily yielding them or by doing certain acts which will be held, by force of law, to have that effect.
It is not easy to lay down any general rule as to what acts shall constitute a waiver. That must depend largely upon the circumstances of each particular case. There are, however, principles upon which estoppels proceed. The doctrine is not
There should be a new trial, and it is so ordered.