41 S.C. 109 | S.C. | 1894
The opinion of the court was delivered by
The- plaintiff recovered a judgment against the defendant, in the Court of Common Pleas for Spartanburg County, in this State, on a cause of action, a debt, which arose prior to the year 1880,
In the year 1888, both plaintiff and defendant departed this life. Mrs. C. E. Winsmith, the widow of defendant, continued to hold said three lots as homestead until November, 1889, at which date, under an action by herself as plaintiff and her only child, Mrs. Moore, as defendant, for the sale of the same for partition between the two, the master sold the three lots to Baxter H. Moore, the son-in-law of Mrs. Winsmith and the husband of Mrs. Moore, but no title actually was made until October, 1892.
The executrix &c. of plaintiff demanded of George B. Dean, as sheriff for Spartanburg County, in this State, prior to 13th February, 1893, to levy upon and sell the said three lots to satisfy the aforesaid judgment of her testator. This demand was refused by said sheriff. Thereupon a rule was issued by Judge Norton requiring such sheriff to show cause why he should not be enforced to make such sale. The sheriff made return, embodying therein the facts previously recited, denying that the said lands were liable to sale under such execution. Affidavits were also submitted pro and con. That of B. H. Moore was as follows: “That he was the purchaser of the lots of land sought to be sold herein under the judgment and execution in the above entitled cause, for a valuable consideration, on the day of (November), 1889, when the said lots were sold by the master for Spartanburg County at public outcry, the same being sold as a part of the homestead of John Winsmith, deceased, at the instance of C. E. Winsmith, his widow, and Kate M. Moore (nee Winsmith), his daughter, for division between them as the only heirs at law of the said John Winsmith, deceased.
The affidavit of T. E. Trimmier set forth, that by the records of said Spartanburg County, it was shown that Mrs. C. E. Win-smith was the owner, under a deed made to her in 1881, of thirty-four acres of land, whereon was a dwelling house and
All these matters were considered by Judge Wallace, who, on the 9th day of August, 1893, filed his order, wherein “It is ordered and adjudged, that theland levied on is subject to levy and sale under plaintiff’s execution. It is, therefore, ordered, that the rule herein be made absolute.” From this order and the judgment entered thereon, B. EL Moore and Geo. B. Dean, as sheriff, have appealed: 1. In ruling and holding that the land levied upon was subject to levy and sale under the execution of F. M. Trimmier. 2. In not ruling and holding that B. H. Moore had a good and valid title as an innocent purchaser for value from the master, as to the land levied upon, and that the same was not subject to levy under plaintiff’s execution. 3. In not ruling and holding that the assignment of the homestead, duly made and recorded to John Winsmith, vested the same, exempt from levy and sale, in the said John Winsmith and his heirs. 4. In not ruling and holding that B. EL Moore was an innocent purchaser for value of the land purchased at the partition sale of the same, at least against the
We have taken the pains to reproduce in this opinion the grounds of appeal as they were presented to this court by the appellants. .The questions raised by these five grounds of appeal may be considered thus: First. Under what law of this Stale was the exemption of homestead to be made to be valid? Second. Could a valid exemption of homestead be made, under the proofs in this case, to extend beyond the lives of Dr. Win-smith and his wife? Third. Granted that the assignment of homestead could only extend during the life of Dr. Winsmith and his wife, was there anything in the knowledge of F. M. Trimmier of the proceedings in homestead, and his conduct thereunder, by which the doctrine of estoppel would be set in motion as a defence to this proposed sale of land in favor of B. H. Moore as against F. M. Trimmier and his representatives?
Section 32 of article II. of the Constitution-provided: “The family homestead of the head of each family, residing in this State, such homestead consisting of dwelling house, out buildings, and lands appurtenant, not to exceed the value of one thousand dollars- and yearly product thereof, shall be exempt from attachment, levy or sale on any mesne or final process issued from any court.” In Chalmers v. Turnipseed, 21 S. C., 137, when this section was being construed, it was decided: “The exemption depends upon certain conditions and surroundings, to wit: first, there must be a head of a family, and, second, there must be a homestead, a dwelling house, a place where the head of a family resides. When these two conditions are pre
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.