Nixon Grocery Co v. Spann

Decision Date26 November 1917
Docket Number(No. 9830.)
Citation108 S.C. 329,94 S.E. 531
PartiesNIXON GROCERY CO. et al. v. SPANN et al.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Bamberg County; R. W. Memminger, Judge.

Action by the Nixon Grocery Company and others against J. A. Spann and others. From an order directing defendant J. A. Spann to turn over certain land to a receiver, he appeals. Reversed and remanded.

Mayfield & Free, of Bamberg, and W. H. Townsend, of Columbia, for appellant.

R. J. Southall, of Spartanburg, Whaley, Barnwell & Grimball, and Mitchell & Smith, all of Charleston, and Carter & Carter, E. H. Henderson, and H. M. Graham, all of Bamberg, for respondents.

HYDRICK, J. J. A. Spann appeals from an order requiring him to turn over to the receivers herein the property set off to him as his homestead. His right to homestead is not questioned, but plaintiffs allege that it was not set off according to law, and that, in the way in which it was set off, it operates as a fraud upon their rights.

Spann was a farmer and merchant, and is insolvent. He owns two tracts of land in Bamberg county—the Guess tract, 400 acres, mortgaged to Spann Bros, for $16,087.68, the Matheny tract, 178 acres, mortgaged to Mrs. Matheny for $3,600—and an unincumbered lot in Bamberg, and three tracts in Green-wood county, and one in Texas, all covered by mortgages. He owns also 22 mules and 1 horse, covered by mortgages, and some live stock and other personal property not incumbered. In 1915 Nixon Grocery Company and others obtained judgments against him. In February, 1916, Nixon Grocery Company ordered the sheriff to levy their execution. Spann claimed homestead, and demanded that it be set off in his Bamberg lands to the amount of $1,000 above the mortgage debts thereon, and in his personal property to the amount of $500 above the mortgage debts thereon. Accordingly, the appraisers set off to him the Guess and Matheny tracts, subject to the mortgages thereon, and the town lot, appraising the Guess tract at $16,200, and at $112.32 above the mortgage debt and the Matheny tract at $3,800, and at $200 above the mortgage debt, and the town lot at $150, making the total value of lands set off to him in part as his homestead $462.32, For his exemption in personal property, they set off 22 mules and 1 horse, valued at $4,000, subject to the mortgages thereon, the amount of which they did not find, and other unincumbered property, valued at $150.

The return of the appraisers was filed February 11, 1916. No exceptions to it were filed by Nixon Grocery Company or any other creditor within 30 days after it was filed, as required by statute (section 3711), and it was recorded March 15, 1916, in the clerk's office. But on February 12th plaintiffs brought this action in behalf of themselves and all other creditors in which they seek to set aside for fraud certain mortgages given by Spann and to reach other property alleged to have been fraudulently disposed of. They seek also in this action to set aside the assignment of homestead on the grounds that it is excessive, and that Spann had it set' off in the manner stated with the fraudulent intent of putting his property beyond the reach of their executions. Spann denies the charges of fraud, and contends that the assignment of his homestead is res adjudicata. On March 6th Judge Prince appointed a receiver of "all and singular the assets of the defendant J. A. Spann individually, not exempt under the Constitution and laws of the state, " and also of the property of Spann and Simmons, a firm of which Spann had been a member. The order contained the usual-injunction in such cases, among other things, enjoining all creditors from proceeding to enforce their demands, except in this action.

On demand of the receiver, Spann refused to turn over the property assigned as his homestead, and plaintiffs moved for an order requiring him to show cause why he should not be attached for contempt. On hearing the motion, Judge Prince passed an order reciting that Spann's refusal was based on the ground above stated, and referring it to the master to take testimony and re port what property had been set off as his homestead, with his findings and conclusions. The master held a reference on March 24th, and made his report on the 2Sth, finding the facts as hereinbefore stated, and concluding that the property set off is exempt. He therefore recommended that plaintiff's motion for an order requiring Spann to turn it over to the receiver be refused. This report was not filed with the clerk, but was delivered to plaintiff's attorney, who kept it until it was produced on November 27th as an exhibit to Spann's return to the rule issued by Judge Memminger. In the meantime other creditors, suggesting that the proceedings were not sufficiently adversary, applied for leave to intervene, and by orders of Judge Prince of April 25th and 28th, they were made plaintiffs, with leave to file an amended complaint, and a coreceiver was appointed. They filed an amended complaint, and brought in as defendants, among others, the holders of the chattel mortgages on Spann's mules and horse. They also attacked the assignment of homestead on the grounds already stated, and alleged that they are not bound by it, nor by the reference and report of the master thereon, because they were not parties to the proceedings, and had no notice thereof. Therefore they prayed that the reference be opened, and that they be heard in evidence and argument as to the validity of the assignment, alleging that in the circumstances the property assigned should be sold under order of court in order that they might have the opportunity of making it bring its true value, and that from the proceeds the mortgages be paid, the debtor's homestead assigned, and the surplus applied to their debts. Spann answered, as before, that the homestead is res adjudicata. Nevertheless another reference was held at which additional testimony was taken, but it does not appear that any other or further report was made.

The next step was an application by the receivers to Judge Memminger, who followed Judge Prince as presiding judge of the circuit, for an order requiring Spann to turn over to them all the property set off to him as his homestead. The order prayed for was granted on November 27th; from that order Spann appealed.

Both creditors and debtor have proceeded under erroneous conceptions of their rights. The constitution provides that "the General Assembly shall enact such laws as will exempt from attachment, levy 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 any lesser estate, to the value of $1,000.00, " etc., with a like provision for an exemption of personal property to the value of $500. In obedience to this mandate, the General Assembly enacted section 3711 et seq. of the Code of 1912, which provides for thehomestead and how It shall be set off and secured to the heads of families. Considering the purpose of the exemptions and the provisions of the Constitution and statutes on the subject, the intention is manifest that the exemptions shall be set off in property when it is practicable to do so, because the purpose will thereby be best subserved. But i the lawmakers foresaw that circumstances might arise in which it would be...

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19 cases
  • Long v. Carolina Baking Co.
    • United States
    • South Carolina Supreme Court
    • December 16, 1939
    ... ... it is allowed by rule of court or statute." Nixon ... Grocery Co. v. Spann, et al., 108 S.C. 329, 94 S.E. 531, ...          In the ... ...
  • Eaddy v. Wall
    • United States
    • South Carolina Supreme Court
    • March 24, 1937
    ... ... have no authority to effect a partition among the tenants in ... common. Nixon Grocery Co. v. Spann, 108 S.C. 329, 94 ... S.E. 531; Nance v. Hill, 26 S.C. 227, 1 S.E. 897; ... ...
  • Georgian Co. v. Britton
    • United States
    • South Carolina Supreme Court
    • September 6, 1927
    ... ... 219.] ... the law of the case. As is stated in the conclusion of the ... case of Nixon Grocery Co. v. Spann, 108 S.C. 329, 94 ... S.E. 531: ... "It is well settled that one circuit ... ...
  • Barron v. English
    • United States
    • South Carolina Supreme Court
    • March 11, 1924
    ... ... effect a partition among the tenants in common. Nixon v ... Spann, 108 S.C. 329, 94 S.E. 531; Nance v ... Hill, 26 S.C. 227, 1 S.E. 897; Mellichamp ... ...
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