43 S.E. 788 | S.C. | 1903
February 19, 1903. The opinion of the Court was delivered by This is an appeal from an order discharging a rule against the sheriff, requiring him to show cause why he refused to levy the execution in the above stated case, on two tracts of land, one containing 50 and the other 150 acres, which had been set off to Henry M. Hunter as his homestead. The contention as to the 50 acre tract was abandoned. On the 13th of June, 1881, J.B.E. Sloan recovered judgment against Henry M. Hunter on a debt contracted 12th October, 1877. The land was set off to Henry M. Hunter as a homestead on the 15th of December, 1889. All the proceedings relating thereto were duly recorded in the homestead book. The homestead was set off in the case of J.B.E. Sloan v. Henry M. Hunter. No exceptions were filed to the return of the commissioners by J.B.E. Sloan. Henry M. Hunter did not live upon the 150 acres nor was *237 it appurtenant to his dwelling. Henry M. Hunter died in 1893. On the 12th of May, 1894, summons to revive said judgment was served on R. Lee Hunter, as administrator, and the Court granted an order in July, 1894, reviving the said judgment. Execution was issued 20th December, 1895, and lodged with the sheriff December 23d 1895. The rule was heard by his Honor, Judge Gage, in October, 1901, and he dismissed it, on the ground that the land having been set off as a homestead, was exempt from levy and sale.
The appellant's first two exceptions are as follows: "I. Because his Honor, Judge Gage, erred in holding that the alleged dedication of homestead of Henry M. Hunter estopped the plaintiff from ever thereafter enforcing his judgment and execution against the land embraced in said alleged homestead. II. Because he erred in holding that the setting off of said homestead was a perpetual bar to the enforcement of the execution, when the homestead record did not show that the land set off as homestead embraced the dwelling house of Henry M. Hunter, and when it was neither the dwelling house nor appurtenant thereto." We deem it only necessary to cite the cases ofSymmes v. Symmes,
The third exception assigns error as follows: "III. Because he erred in not holding that when Henry M. Hunter and his wife died, and his children had attained their majority and dispersed from his home, their right of homestead then ceased to exist, and the assignment thereof became extinct." The rule is well settled in this State that the right of homestead is to be determined by the laws of force when the debt was contracted. Sec. 32, art. II., of the Constitution of 1868, contains the following provisions: "The family homestead of the head of each family residing in this State, such homestead consisting of dwelling house, outbuildings and lands appurtenant, not to exceed the *238
value of $1,000 and yearly products thereof, shall be exempt from attachment, levy or sale, or any mesne or final process, issued from any Court * * * It shall be the duty of the General Assembly at their first session to enforce the provisions of this section by suitable legislation." Accordingly, in 1868, the General Assembly passed an act (14 Stat., 20), the fourth section of which provides: "The estate or right of homestead of any family existing at his death shall continue for the benefit of his widow and minor children, and be held and enjoyed by them until the youngest child is twenty-one years of age, and until the marriage or death of the widow, and be limited to that period." Again, the General Assembly passed an act in 1872 (15 Stat., 230), the fourth section of which provides: "That the homestead when assigned as herein prescribed shall vest in the head of the family in fee simple, and be freed and discharged from all debts and liabilities whatever so long as he or she shall remain resident in the State, and no longer." In the eighth section of this act, which secures a right of homestead to the widow and minor children of any deceased father or husband, there is, however, no provision as to the time during which such exemption shall continue. These acts were repealed by the act of 1873 (15 Stat., 370), the second section of which is as follows: "That when thirty days shall have elapsed, after the filing of the return of said appraisers setting off a homestead to any debtor, according to the provisions of section 1 of this act, and no good cause has been shown or exceptions filed against said return, such debtor may have such return recorded in the office of the register of mesne conveyance of the county in which the same is located, and upon such return being so recorded in thirty-three days after the proceedings have become final, the title to the homestead so set off and assigned shall be forever discharged from all debts of said debtor then existing or thereafter contracted." Section 4 of that act is as follows: "If the husband be dead, the widow and children living on the homestead, if the father and mother be dead, the children living on the homestead, *239
whether any or all such children be minors or not, shall be entitled to have the family homestead exempted in like manner as if the husband or parents were living; and the homestead so exempted shall be subject to partition among all the children of the head of the family in like manner as if no debts existed: Provided, That no partition or sale in that case shall be made until the youngest child becomes of age, unless upon proof satisfactory to the Court hearing the case, such sale is deemed best for the interest of such minor or minors." These sections, with some immaterial changes in section 2, have continued of force since the act of 1873, as will be seen by reference to sections 2627 and 2629 of the Revised Statutes. On the 13th day of December, 1880 (17 Stat., 320), the Constitution of 1868 was amended by striking out the section hereinbefore mentioned and inserting in lieu thereof another section, which provides: "The General Assembly shall enact such laws as will exempt from attachment and sale under any mesne or final process, issued from any Court, to the head of any family residing in this State, a homestead in lands, whether held in fee or in any lesser estate, not to exceed in value $1,000 with the yearly products thereof." At the time when the plaintiff's debt was contracted, section 313 of the Code provided: "This section shall not be construed so as to make final judgments in any case a lien on the real property of the judgment debtor exempt from attachment, levy and sale under the Constitution." This provision is now found in section 309 of the Code. The foregoing acts and provisions of the Constitution are set out in the cases of Chalmers v. Turnipseed,
The fourth exception is as follows: "IV. Because he erred in not holding that all acts of the General Assembly passed prior to 1880, providing for the perpetuity of homesteads, were in conflict with the Constitution, and he should have held that the homestead ceased when the two necessary constitutional conditions ceased to exist, to wit: The head of the family, or family, and the family homestead." This exception is too general for consideration.
The fifth exception is as follows: "V. He erred in not making the rule absolute, and in not ordering the sheriff to enforce said execution." This exception fails to point out any specific error.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.