26 S.C. 227 | S.C. | 1887
The opinion óf the court was delivered by
The plaintiff having recovered a judgment against the defendant upon a debt contracted since the adop
From this judgment or order the plaintiff appeals, substantially upon the following grounds: 1st. Because there was no levy under the execution. 2nd. Because the proceedings did' not show either that the defendant was a resident of the State, or that he was the head of a family, or that he lived on the land or lands appurtenant to that assigned. 3rd. Because no homestead can be assigned in an undivided interest in real estate. 4th. Because the appraisers were not sworn and none of them were appointed by the plaintiff.
As to the first ground, we do not think any levy was necessary, or could, in fact, be properly made, if it is made to appear that the defendant was entitled to a homestead in the land in
As to the second ground, it may be stated that the “Case” is exceedingly meagre in its statement of facts; so much so that the main fact upon which appellant’s strongest ground of appeal rests, to wit, that the defendant was only entitled to an undivided interest in the land out of which the homestead was allowed, does not appear, except by implication. Under these circumstances we must infer from the language used by the Circuit Judge, as well as from the absence of any statement to the contrary, that it was either admitted or in some other way made to appear that defendant was the head of a family and a resident of this State. "Whether the defendant lived on the land out of which the homestead was claimed, is wholly immaterial. The language of the constitution as amended in 1880 is very different from that used in the original constitution, There the exemption was of “the family homestead, * * * such homestead consisting of dwelling house,” &c.; while the language of the amended constitution is, UA homestead in lands,” &e. In the one case the designation of the property exempted was definite and specific, while in the other it is indefinite and general. But as this question has already been distinctly decided in the recent case of Swandale v. Swandale, 25 S. C., 389, we need do no more than refer to that case.
The third ground presents a question of more difficulty. While we not deny that a person may be entitled to claim a homestead in his undivided interest in real estate, after his share therein has been duly ascertained and set off to him, it seems to us that there is an insuperable practical difficulty in assigning a homestead out of an undivided interest in real estate, before the same has been partitioned. The act in terms requires that the homestead shall be set off “by metes and bounds,” and this is impracticable before partition. For, until partition, it cannot be known with any degree of certainty what particular portion of the land
Now, if hereafter the land in which the defendant seems to have an undivided interest, should be sold for partition, serious complications might arise as to the rights of the parties, and perhaps the defendant might have to renew his application for exemption of his share of the proceeds of sale. At all events, in view of the fact that it is practically impossible to set off a homestead by metes and bounds in an undivided interest in real estate, and inasmuch as neither the constitution nor the act mentions such an interest, but.simply provides for “a homestead in lands, whether held in fee or any lesser estate,” probably because of this practical difficulty, we think the conclusion follows that the court has no authority to assign á homestead out of an undivided interest in real estate, and therefore that the present application is premature.
But as we think it clear that the object of the constitution was to confer this exemption upon the head of every family residing in this State, we do not think that the fact that it is impracticable now to make the assignment should defeat the defendant’s right to demand such exemption at the proper time; and we suppose that the court would, under a proper proceeding, and upon a- proper showing for that purpose, by its preventive process interpose to restrain the sale of .his undivided interest until he-could have an opportunity, by partition, to have his share ascertained and set apart to him, in which he might then demand that a homestead should be set off to him. We think, therefore, that the judgment or order appealed from should be reversed, solely upon the ground that the application for assignment of homestead
Under the view just presented, the questions raised by the fourth ground are no longer practical; for as the assignment of homestead must be set aside on the ground above stated, any informalities or irregularities in the proceedings already had are of no consequence. We may say, however, that the directions in the sheriff’s notice, requiring the appraisers to be sworn, as ■well as the recital in the return that they were so sworn, would, in the absence of any evidence to the contrary, seem to be sufficient evidence that they were duly qualified. So, too, as to the appointment of an appraiser on behalf of the plaintiff we,must assume, in the absence of any evidence to the contrary, that the sheriff did his duty as required by the act, and that the plaintiff either named the appraiser Risor, or that he declined to suggest the name' of any one, when it became the duty of the sheriff, under the act, to make the appointment himself.
The judgment of this court is, that the judgment or order, of the Circuit Court be reversed, upon the ground and with the limitation above stated, without prejudice to the right of the defendant to institute such further proceedings as he may be advised are necessary for the protection of his rights in the premises.