Chafee & Co. v. Rainey
| Decision Date | 22 March 1884 |
| Citation | 21 S.C. 11 |
| Parties | CHAFEE & CO. v. RAINEY. |
| Court | South Carolina Supreme Court |
1. The concluding order of a Circuit decree was directly contrary to the whole tenor of the decree. Upon the matter being brought to the judge's attention by a letter from the attorney of the losing party, the judge wrote to the clerk of court directing a change in the order, stating that the concluding sentence as written was an error. Held , that it was a mere clerical error, which the Circuit judge could correct on an ex parte application, and that the act of the clerk under the order of the court was the act of the court itself.
2. A judge may render a decree in a cause heard before him in one Circuit, after he has entered upon the duties of another term in another Circuit; and so, too, he may then direct the correction of mere clerical errors in a judgment rendered by him on a previous Circuit.
3. If at the time of levy, a condition of things exist entitling defendant to homestead, he may properly claim it. Thus, where judgment was obtained against the head of a family, and he afterwards ceased to be such, but again, and before levy made, married a wife, he is entitled to his homestead exemption as against such judgment.
4. This case distinguished from Pender v. Lancaster , 14 S.C. 25, and Jones v. Miller , 17 S.C 380, and Pender v. Lancaster explained and limited.
Before ALDRICH, J., Georgetown, March, 1883.
The opinion fully states the case. The original decree of the Circuit judge was as follows, omitting its statement of facts:
Mr. Dozier, with great force and ingenuity, contended that the defendant Rainey is not entitled to the exemption, because his second wife having died in June, 1880, and his children not living with him, he was not the head of a family; that the lien of the judgment attached, and his subsequent marriage in June, 1881, did not divest that lien, and, therefore, the lot No. 55, in which he had lived with his previous wives and children, was subject to levy and sale.
After the adoption of the constitution of 1868, our Supreme Court, as it was then constituted, seemed inclined to give the most liberal construction to the article providing for the homestead exemption. They treated it as a favored tenure for the support of the family of the insolvent debtor, whose reverses had reduced them from affluence to poverty, and doubtless this was the benevolent intention of the framers of the constitution. Evidently it was intended to meet any final process, issued from any court, for any debt contracted before or after the adoption of the constitution. But the decision in Gunn v. Barry , of the United States Supreme Court, suddenly arrested this inclination, and this beneficent purpose of the constitution was treated as against public policy and the binding obligation of contracts. This was so obvious that the legislature found it necessary to pass several acts giving construction to the constitutional provision and enlarging the restrictions placed thereon by the court.
I am convinced, from a careful consideration of the debate on the adoption of this section, reported in the journal of the convention, that the benevolent idea of Mr. Jefferson was the controlling thought of those who had the framing of that instrument. That distinguished statesman and philosopher, whose political sagacity was as far-reaching as his benevolence was wide, in the dawn of our independence thus eloquently writes:
This idea of the sacredness and inviolability of the homestead was more readily adopted by the new states than by the old. Experience had taught them that the debtor class was more frequently the victim than the creditor class, the latter too often seducing the former into expenditures that ruined his fortunes and deprived his wife and children of the shelter of the family roof-tree; that capital is ever waging perpetual war against labor. Hence the constitution of 1868 introduced this protection for the helpless and innocent family, and the legislature has since approved the benevolent purpose, so that I hold it to be the duty of the courts to perpetuate this truth: " That the homestead of every man is a holy thing, which no law can touch, no juggle wrest from his wife and children."
Now, Rainey was entitled to his homestead in February, 1874, when Chafee & Co. obtained their judgment. It was not assigned to him until January 19th, 1883, and it is contended that the lien of the judgment attached after the death of the second wife, in June, 1880, because, his children having married and moved away from the homestead, he was not the head of a family. Is not this the very " " juggle" and " trickery" that Mr. Jefferson speaks of? How can it be maintained that the man is not the head of a family because his children have married and gone off? Filial relations cannot be thus dissolved. The children of the daughter and the son are taught to regard the grandparents with as much affection, respect, and reverence as their own parents, and to look to the old homestead as the place where they have the right to go and be welcomed and protected. Suppose the husband of Rainey's daughter dies, leaving her a desolate widow, with destitute children. Is it the spirit and intention of the law that she, with her orphans, shall be turned from her father's house because a ruthless creditor has levied an execution after the death of her mother, and while she was absent from the home of her nativity? I cannot think so.
Section 1,995, page 579, of the General Statutes, provides for the filing, approval, and recording of the return. " And upon such return being recorded in forty 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." In this case the levy was made on December 6th, 1882; the homestead assigned to him January 19th, 1883. Why? Because, from February, 1874, the date of the Chafee judgment, he had a wife and children living with him, and the plaintiff in the execution making no levy, there was no necessity for him to claim his exemption. But after the death of the wife, and the marriage and removal of the children, although he had taken another wife, who was then living with him, the plaintiff claims that, in the interval between the death of his second wife and his marriage to his last wife, the lien of the execution vested, and the subsequent marriage cannot divest it.
Pender v. Lancaster , 14 S.C. 25, is relied on to support this position. But that is a very different case. The property levied on there was a horse, and was advertised for sale by the sheriff. The defendant married the day before the sale. The court very properly say: You cannot defeat a vested lien by marrying a wife twenty-four hours before the sale. This would be using the law to practise a fraud. The credit extended to you was on the faith of that horse, and the law can afford you no aid. Here the credit was not extended to Rainey on the faith of his homestead, in lot No. 55, or on the probability of his wife dying and his children marrying and moving off, for the creditors were fully apprised that he was the head of a family. By section 1,998, page 580, " no waiver of the right of homestead, however solemn, made by the head of a family at any time prior to the assignment of the homestead, shall defeat the homestead provided for in this chapter." If the defendant, in execution, cannot defeat the homestead by the most solemn act, how can it be defeated by operation of law?
I think this disposes of the question, and the application for homestead is dismissed with costs.
Mr. R. Dozier , for appellant.
Mr. LeGrand G. Walker , contra.
These two cases, involving the same question, were heard and will be considered together. The questions are: 1. Whether the respondent is entitled to claim a homestead as against the judgments of the appellants; 2. Whether the circuit judge had the power to correct a mistake in his decree after it was filed.
The facts out of which these questions arise are as follows: The judgment in favor of Chafee & Co. was recovered on February 11th, 1874, and that in favor of Johnson on June 24th, 1875. There is also " a judgment in favor of Lavinia Burridge for $97.24, dated June 24th, 1875, on record, but unrenewed." In all these judgments the causes of action arose since the adoption of the present constitution. The respondent Rainey has been married three times, and resided, with his several wives, on the lot in which the homestead has been assigned to him, viz., with the first wife from April, 1862, to November, 1876, when she died; with his second wife from May, 1878, to June, 1880, when she died; and with his third wife, who is still living, from June, 1881, to the present time. The respondent during all this time had children living, but not residing with him, being only temporary visitors to the homestead at various times. He also had servants at the homestead continuously from the date of his first marriage.
Under executions issued in the above stated cases, the sheriff on December 6th, 1882,...
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