23 S.C. 316 | S.C. | 1885
The opinion of the court was delivered by
(Omitting the statement of facts.) The appeal involves the two questions decided below, which we will consider in their order above.
First. Was the defendant the head of a family, in a homestead sense, when the property in question was levied upon by the plaintiff? The meaning of the term family, as taken from the best lexicographers, is: “The collective body of persons who live in one house, and under one head or manager, a household, including parents, children, and servants, and, as the case may be, lodgers or boarders.” Webster. If this is the true meaning of the term family, and if it was used in the constitution in this sense, there certainly could be no doubt that the defendant was the head of a family at the date of the levy. Because it is admitted that his son was a part of his household, living with him in the same house, under his control and employment, he being the head and the manager.
Have we any reason to conclude that this term was .used in the constitution in some curtailed and limited sense, and not in this general sense? In Garaty v. Dubose (5 S. C., 500), the court held that a bachelor, having no person dependent upon him, and none residing with him except servants and employees, is not the “head of a family” in the,constitutional sense; and Chief Justice Moses, in delivering the opinion of the court, did intimate that inasmuch as the homestead exemption was in derogation of the rights of creditors at common law, it was not entitled to such liberal construction as would extend it to those who are not within the spirit and policy of the provision. Even admitting this to be true, yet he laid down no rule which would authorize
Has the term “family” been limited in its general and ordinary meaning as defined in Webster by any of our cases on the subject of homestead? We have found no such case. On the contrary, the case of Bradley v. Rodelsperger (3 S. C., 227) holds expressly that this term, as used in the constitution, must be taken in its ordinary sense. And in that case the court below having held that a childless widow could not be the head of a family in the sense of the constitution, this court reversed the judgment below, and in remanding the ease said: “The constitution has not given any definition of the term family, nor indicated any of its necessary ingredients; the term must, therefore, be taken in its ordinary sense. In this sense it is not essential that it should include children.”
Taking the term “family,” then, in its ordinary sense, which includes persons living in one house, and under one head or manager, we think the Circuit Judge was right in holding below that the defendant was the “head of a family.” His son was living with him as a part of his family, and his son being a married man, no doubt entitled to have his wife and children with him, if he had any children, certainly this constituted a family, of which the defendant was the head.
But, independent of this, we think the defendant was entitled to the homestead under the principle of the case of Chafee & Co. v. Rainey, 21 S. C., 11. In that case the defendant was a mar
On the second question the Circuit Judge upon full testimony having determined that the homestead allowed was not excessive, we see nothing in that testimony authorizing this court to overrule his finding on that subject.
It is the judgment of this court that the judgment of the Circuit Court be affirmed.