Barron v. English

• Decision Date: 11 March 1924
• Docket Number: 11444.
• Citation: 121 S.E. 782,128 S.C. 332
• Parties: BARRON v. ENGLISH.
• Court: South Carolina Supreme Court

121 S.E. 782

128 S.C. 332

BARRON v. ENGLISH.

No. 11444.

Supreme Court of South Carolina

March 11, 1924

Appeal from Common Pleas Circuit Court of Union County; T. S. Sease Judge.

Action by J. A. Barron against W. M. English. From an order holding that the sheriff's return was sufficient to justify his refusal to levy and collect an execution under plaintiff's judgment against defendant, plaintiff appeals. Order affirmed.

Wallace & Smith, of Union, for appellant.

John K Hamblin, of Union, for respondent.

COTHRAN J.

The plaintiff heretofore recovered a judgment in the court of common pleas against the defendant, which has been duly entered and upon which execution has been issued and lodged with the sheriff of Union county.

The defendant owns an undivided interest in a tract of land in said county; his interest, as it is said, exceeding in value the sum of $1,000.

The sheriff having refused to levy and collect the plaintiff's execution upon and out of the defendant's undivided interest, the plaintiff obtained a rule from Hon. T. S. Sease, circuit judge, requiring the sheriff to show cause why he should not make such levy. The sheriff made return justifying his refusal upon the grounds that the only real estate owned by the defendant was held by him as a tenant in common, that the same had not been partitioned, and that the defendant was entitled to a homestead therein which had not been assigned. Upon hearing the matter upon the sheriff's return, the circuit judge in a formal order, held that the return was sufficient, and discharged the rule. The plaintiff appeals.

The following principles applicable to the situation have been established:

1. The legal estate owned by a tenant in common in real estate is subject to levy and sale, provided the limitations of the homestead law and the right of partition are not invaded; Holley v. Glover, 36 S.C. 404, 15 S.E. 605, 16 L. R. A. 776, 31 Am. St. Rep. 883.

2. A homestead in lands owned by a debtor as tenant in common with others cannot be set off, for the reason that it is impossible for the appraisers in homestead to obey the mandate of the statute and set it off "by metes and bounds," and because the debtor owns no particular part of the land and the appraisers have no authority to 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 v. Mellichamp, 28 S.C. 125, 5 S.E. 333; Ketchin v. Patrick, 32 S.C. 443, 11 S.E. 301; Ex parte Beaty, 107 S.C. 364, 92 S.E. 1052.

3. If the execution creditor should attempt to make levy and sale upon and of the tenant in common's interest, the tenant in common would have the right to have the sale restrained until he could have an opportunity by partition to have his share ascertained and set apart to him, in which he might then demand that a homestead be set off to him. Nance v. Hill, 26 S.C. 227, 1 S.E. 897; Mellichamp v. Mellichamp, 28 S.C. 125, 5 S.E. 333; Ketchin v. Patrick, 32 S.C. 443, 11 S.E. 301; Lumber Co. v. Lumber Co., 84 S.C. 505, 66 S.E. 124, 877.

While these considerations are sufficient to sustain the...