Garaty & Armstrong v. Dubose

5 S.C. 493 | S.C. | 1875

The opinion of the Court was delivered by

Moses, C. J.

If the claim to a homestead by the respondent, DuBose, was founded only on his interest-in the land of which he is the occupant, it would be enough to say that he does not hold it by any legal title, and only to such does the homestead provision apply. The Constitution (Art. II, Sec. 32,) expressly refers to the real estate of the head of a family, subject to sale “ under mesne or final process issued from any Court.” It presupposes a title, capable of transfer by such a sale. The respondent here has no legal title to the real estate. He is only in possession under a contract to purchase, and there yet remains due one-third of the purchase money. He has but an equitable interest. It can never ripen into a legal title until the full consideration agreed to be paid has been satisfied. The Constitution, and the several Acts of the Legislature, in their various provisions in regard to the homestead exemption, all look to an interest in the land which can be transferred by a judicial sale. The mere equitable interest which the claimant holds in the real estate, described in the return of the Sheriff, does not entitle him to its benefit.

In the personal property he has an absolute right. If he is the “head of a family,” within the contemplation of the homestead law, he may claim its interposition, so far as it extends to such property.

The exemption was intended, not alone as a benefit to the head of the family, but to those whose relations to the head demand, on the one hand, support and protection, and, on the other, require a contribution, by the aid of their labor, to the maintenance and conduct of the general establishment to which they belong. This would naturally be the case between parent and minor children who are in terms embraced within the exemption. It would not follow that, although the head of a family might.not be a parent, the one substituted as the head would lose the favor of the provision, for it would extend to one having under his roof those so connected with him, by ties of residence and association, as to become part and parcel of his household, changing their domicile with him, and having no residence but that which they enjoy under his favor. It is not necessary, to constitue a family, that the relation of parent and child must exist. One of the definitions which Mr. Webster gives of it is, “ the collective body of persons who live in one house, and under one head or manager.” The respondent here is a single man — no person under the same roof with him, and no one. on his premises, save servants and employees. Their continuance with him is but temporary. He may change them from time to time, and they, at their own will, may depart his service. There is absent that peculiar feature, which can be better understood than described, which distinguishes the family even from those who may dwell within the limits of the same curtilage.

The language of the 7th Article of the Constitution of Georgia, in regard to “ homestead exemption,” is in terms very similar to those of our own. It declares that “each head of a family” is entitled to an exemption of a certain amount, both of real and personal property, against which no judgment of any Court within the State shall be enforced. In Calhoun vs. McLendon, 2 Geo., 406, the Supreme Court re-affirmed a decision which it had before made, to wit: “That a single man, having no person dependent on him for a support or maintenance, in the meaning of the Constitution, was not the head of a family, and the servants proven to be in his employ in this case does not change the rule.”

Statutes exempting property from liability to debts are in derogation of the common law, and not entitled to such a liberal construction as would extend them to those who are not in the spirit or letter of the policy of their enactment. The object of the protection afforded by the Constitution “ was the family, the head of it standing as its representative.”—In Re. Kennedy et al., 2 S. C., 216; Bradley vs. Rodelsperger, 3 S. C., 226; Howe vs. Howe, 2 S. C., 229.

The motion to reverse the order appealed from is granted.

Wright, A. J., and Willard, A. <7., concurred.