Wallace v. Johnson
| Decision Date | 15 July 1883 |
| Citation | 17 S.C. 454 |
| Parties | WALLACE v. JOHNSON. |
| Court | South Carolina Supreme Court |
1. Under the act of 1877 (16 Stat. 264), which authorized a distress for rent to be levied upon any property found upon the premises, without regard to its ownership household goods of the wife were distrained for rent due by the husband. Held , that the wife could not claim the exemption of such property under a homestead law which exempted her property fro levy and sale for her own debts but not for the debts of another.
2. But the seizure was in violation of Article XIV., Section 8, of the Constitution, which protects her property from levy and sale for her husband's debts.
3. By leaving the property in her husband's house-their common home-the wife cannot be held to have made a voluntary pledge of the goods to the payment of her husband's rent for the premises, and no contract to such effect can be thereby implied.
Before KERSHAW, J., Newberry, December, 1880.
Action by Jane E. Wallace against William C. Johnson and R. B Holman, commenced February 5, 1878. The opinion states the case.
Messrs. Suber & Caldwell , for appellant.
It being conceded that the husband has had no exemptions of real or personal property set apart to him, and that the goods distrained are worth less than $500, the act of 1874 (15 Stat. 589) is sufficient to exempt this property to the wife. But Article XIV., Section 8, of the Constitution seems to be conclusive of the question. " Levy and sale" include distress for rent. 4 McC. 378; 4 Strob. 365.
Mr. T. S. Moorman , contra.
The homestead provisions of the constitution and statutes exempt property only to the head of a family out of his own property and as against his own debts. The provision as to married women gives them no more rights than other persons have in their own property, or than they would have if femmes sole . Indeed, there is a restriction in the proviso to this section. The property here distrained was therefore exempt as his property , but was entitled to no greater privileges than the property of other persons, if found on these leased premises. They could therefore be distrained. 10 S. C. 474; 1 Bail. 502.
Andrew Wallace having failed to pay the rent of a certain house leased to the said Wallace by W. C. Johnson, a distress warrant was issued by a trial justice at the instance of the said Johnson, which was levied by the constable Holman, upon the personal property of Mrs. Wallace, the wife of the tenant, being the household and kitchen furniture on the premises and in the use of the family. This action was brought by Mrs. Wallace to recover possession of this property, the landlord and the constable being defendants.
There is no contest as to the title of the property. This is conceded to belong to Mrs. Wallace, but the defendants claim that being found on the premises of the tenant, it was liable to be distrained for the rent in arrears. The remedy by distress for rent in arrears, which had been abolished by Section 20 of the Act of 1868 (14 Stat. 106), was restored by the Act of June, 1877 (16 Stat. 265). Mobley v. Dent , 10 S. C. 471. This act was amended by the Act of March, 1878, (16 Stat. 511), so as to restrict the right of distress to such property as belonged alone to the tenant in his own right; so that the question involved here cannot hereafter arise. The seizure of the property in this case by the constable Holman, however, took place in January, 1878, just before the Act of March, 1878, and while the Act of June, 1877, was of force, unaffected by the restriction in the Act of 1878. The question raised therefore is a pertinent one in this case.
The plaintiff claimed that the property was exempt from distress upon two grounds: First , under the Homestead Act of 1874, 15 Stat. 589; and secondly , under Art. XIV., Section 8, of the Constitution of this State, in reference to the property of married women. The right of trial by jury having been waived, the case was heard by the presiding judge, who dismissed the complaint, and ordered the property seized to be sold, and the proceeds applied to the rentals due and costs. The appeal rests upon the two grounds above mentioned, and calls for the judgment of the court thereon.
The Homestead Act of 1874, supra , provides that in case any married woman having a separate estate shall be married to the head of a family who has sufficient property to constitute a homestead as hereinbefore provided, shall be entitled to all the provisions of the Act and to the exemptions...
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