13 S.C. 371 | S.C. | 1880
The opinion of the court was delivered by
Some time previous to November, 1867, J. F. Craig died intestate, leaving a widow, Harriet C. Craig, who administered upon the estate and continued to reside upon the lands of her deceased husband. It does not appear that the intestate died insolvent, but we assume that he did, for the two cases named in the caption were sued on obligations of the intestate and judgment recovered against the respondent as administratrix, November 4th, 1867. February 8th, 1872, the sheriff of Fairfield county levied upon a tract of land of eight hundred and forty-eight acres as the property of the deceased intestate at the suit of “ Margaret Armstrong and others.” The respondent claimed “ homestead ” out of her husband’s lands so levied, and March 22d, 1872, the appraisers (how appointed does not appear) made a sworn statement that they had “ set aside a homestead from the real estate of J. F. Craig, deceased—
June 24th, 1878, proceedings were commenced in the case of Douglass by service on the sheriff of notice that he would be ruled to show cause why he would not make the money on the execution of plaintiff. The sheriff answered that there was no other property of the deceased debtor out of which he could make the money but the land which had been assigned for a homestead as above-stated, and that he could not, under pain of criminal proceedings, levy and sell that.
July 7th, 1878, the plaintiff, in the case of Harriet Armstrong, second above-stated, served upon the respondents “ exceptions to the assignment of homestead.” The motions in both cases were heard together upon the merits. The Circuit judge sustained the assignment of homestead, discharged the rule against the sheriff in the first case, and in the second overruled “ the exceptions to the assignment of homestead,” and from that ruling the judgment creditors appealed to this court.
This court, at the present term, has decided that the assignment of a homestead as against a debt contracted before the adoption of the constitution is without authority and void “ ab initio,” and such assignment may be disregarded whenever that fact appears in any proceeding, direct or otherwise. Bull v. Rowe, ante p. 355; Hill v. Robertson, 1 Strob. 1; Thompson v. Tolmie, 2 Pet. 169.
The case of Hill v. Robertson was an action for land which had been sold by order of the judge of Probate under petition of guardian of plaintiff, who after he came of age, sued for the land and recovered it. Judge Evans, in delivering the judgment of the court, says: “It would be a waste of words to attempt to prove the proceedings of a court of limited jurisdiction in a case clearly without its jurisdiction, are absolutely void
In the case of Thompson v. Tolmie, the court says: “We agree that if the court had jurisdiction it has a right to decide every question that occurs in the cause, and whether its decision be correct or not, its judgment, until reversed, is regarded as binding in every court. But if it acts without authority, its judgment and orders are regarded as nullities. They are not voidable but simply void, and form no bar to a recovery sought in opposition to them even prior to a reversal.”
The intestate "debtor, J. F. Craig, died before the constitution allowing homestead was adopted, and therefore it is clear that all his debts were in existence at that time, that his widow was not entitled to homestead, Cochran v. Darcy, 5 S. C. 125, and the assignment of homestead to her was simply void.
But it is earnestly argued that the plaintiffs in both the cases under consideration are estopped by their own acts from now moving to set aside this homestead exemption. It is said that under the executions the respondent applied for and had homestead assigned to her; that their execution creditors were parties to the proceeding and they did not appeal, but accepted their “pro rata” of the proceeds of the other lands sold, and acquiesced for six years — from 1872 to 1879. All the parties át the time were ignorant of the true state of the law. According to-the terms of the constitution and our decided cases, the respondent seemed to be entitled to the homestead, but it now appears that she was not so entitled. What effect should the conduct of the parties under these circumstances have upon their rights respectively? It is a new case and not free from difficulty; but, however painful it may be, the law, as we understand' it, must be declared. The statute of limitations is not pleaded and manifestly has no application to the case. By the law of that time, the judgments had a lien for twenty years. The plea of “ res adjudícala ” cannot prevail, for several reasons, but it is only necessary to state that the whole proceedings were without jurisdiction and void.
We are unable to discover in the conduct of these execution creditors any element of the principle of estoppel. As was said
It has been further urged for the respondent that the right to homestead involves the question of title to lands and cannot be decided without a jury and regular sworn testimony upon a mere rule upon the plaintiffs. We have held at the present term, in the case of Charles v. Charles,
The order of the Circuit judge is reversed, and the case remanded for further proceeedings according to the principles herein announced.
Post No. 859.