Douglass v. Armstrong

• Citation: 13 S.C. 371
• Decision Date: 20 April 1880
• Docket Number: CASE No. 856.
• Parties: DOUGLASS v. CRAIG. ARMSTRONG v. CRAIG.
• Court: United States State Supreme Court of South Carolina

13 S.C. 371

DOUGLASS

v.CRAIG.

ARMSTRONG

v.CRAIG.

CASE No. 856.

Supreme Court of South Carolina.

Apr. 20th, 1880.

1. An assignment of homestead under an execution in a case where the debt was contracted before the adoption of the constitution of 1868, is void.

2. The definition of estoppel in Bull v. Rowe, (7) 13 S.C. 355, approved.

3. Judgments were obtained upon debts contracted before 1868; and the lands of the debtor were levied upon in 1872 in the possession of his administratrix and widow, who claimed a homestead; the homestead was admeasured to her, and the remainder of the lands were sold, and the proceeds applied to the executions in these cases; but the assignment of the homestead was not returned to the clerk's office until 1878, during which interval, these execution creditors were quiescent. Held, that they were not estopped from subjecting this homestead to levy and sale under their executions.

Before ALDRICH, J., Fairfield, September, 1878.

The two cases are sufficiently stated in the opinion of the court. The judgment in the Douglass case was obtained November 4th, 1867, as stated in the opinion, but in the Armstrong case the judgment bears date November 12th, 1869.

These cases were heard at April Term, 1879, and the cases were ordered to be re-argued, special attention being directed to the following questions:

1. Can the lien of a judgment obtained prior to the adoption of the constitution of 1868 be affected by the failure of the party holding such lien to except to any proceedings provided for by the acts of the legislature in reference to the mode of assigning a homestead to the judgment debtor?

2. Are not the acts to be construed as relating only to those cases in which, under the constitution, the judgment debtor is entitled to a homestead as against such judgment?

Mr. W. H. Lyles, for appellant.

Mr. Henry Obear, contra.

First question-Cited Bigelow on Estoppel, 500, 578; 46 N. Y. 354;3 Johns. Ch. 416;Sedg. on Const. & Stat. Law, 111; Cooley on Const. Lim. 181; 74 N. Y. 386;46 N. H. 363;Thomp. on Home., § 711.

Second question-3 Pet. 411; Story's Const. 256; 26 Wend. 42.

The opinion of the court was delivered by

MCGOWAN, A. J.

Some time previous to November, 1867, J. F. Craig died intestate, leaving a widow, Harriet C. Craig, who administered upon the estate and continued to reside upon the lands of her deceased husband. It does not appear that the intestate died insolvent, but we assume that he did, for the two cases named in the caption were sued on obligations of the intestate and judgment recovered against the respondent as administratrix, November 4th, 1867. February 8th, 1872, the sheriff of Fairfield county levied upon a tract of land of eight hundred and forty-eight acres as the property of the deceased intestate at the suit of “Margaret Armstrong and others.” The respondent claimed “homestead” out of her husband's lands so levied, and March 22d, 1872, the appraisers (how appointed does not appear) made a sworn statement that they had “set aside a homestead from the real estate of J. F. Craig, deceased-the house and two hundred and fifty acres of land adjoining,” &c.-which paper is marked by the clerk as “filed and recorded April 10th, 1878.” Soon after the said paper was signed, viz., March 4th, 1872, the sheriff, leaving unsold two hundred and fifty acres assigned as homestead, sold the remainder of the lands and the proceeds were distributed among the judgment creditors according to their priorities, including the two cases herein named of William Douglass and Margaret Armstrong.

June 24th, 1878, proceedings were commenced in the case of Douglass by service on the sheriff of notice that he would be ruled to show cause why he would not make the money on the execution of plaintiff. The sheriff answered that there was no other property of the deceased debtor out of which he could make the money but the land which had been assigned for a homestead as above-stated, and that he could not, under pain of criminal proceedings, levy and sell that.

July 7th, 1878, the plaintiff, in the case of Harriet Armstrong, second above-stated, served upon the respondents “exceptions to the assignment of homestead.” The motions in both cases were heard together upon the merits. The Circuit judge sustained the assignment of homestead, discharged the rule against the sheriff in the first case, and in the second overruled “the exceptions to the assignment of homestead,” and from that ruling the judgment creditors appealed to this court.

This court, at the present term, has decided that the assignment of a homestead as against a debt contracted before the adoption of the constitution is without authority and void “ ab initio,” and such assignment may be disregarded whenever that fact appears in any proceeding, direct or otherwise. Bull v. Rowe, 13 S.C. 355;Hill v. Robertson, 1 Strob. 1;Thompson v. Tolmie, 2 Pet. 169.

The case of Hill v. Robertson was an action for land which had been sold by order of the judge of Probate under petition of guardian of plaintiff, who after he came of age, sued for the land and recovered it. Judge Evans, in delivering the judgment of the court, says: “It would be a waste of words to attempt to prove the proceedings of a court of limited jurisdiction in a case clearly without its jurisdiction, are absolutely void and may be so declared wherever the question is presented, whether directly or collaterally.”

In the case of Thompson v. Tolmie, the court says: “We agree that if the court had jurisdiction it has a right to decide every question that occurs in the cause, and whether its decision be correct or not, its judgment, until reversed, is regarded as binding in every court. But if it acts without authority, its judgment and orders are regarded as nullities. They are not voidable but simply void, and form no bar to a recovery sought in opposition to them even prior to a reversal.”

The intestate debtor, J. F. Craig, died before the constitution allowing homestead was adopted, and therefore it is clear that all his debts were in existence at that time, that his widow was not entitled to homestead, Cochran v. Darcy, 5 S. C. 125, and the assignment of homestead to her was simply void.

But it is earnestly...