Eaddy v. Wall
| Decision Date | 24 March 1937 |
| Docket Number | 14456. |
| Citation | 190 S.E. 497,183 S.C. 229 |
| Parties | EADDY v. WALL, Sheriff. GILLAND v. LISTON et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Florence County; Philip H Stoll, Judge.
Proceeding by Mrs. Watson S. Eaddy against W. R. Wall, as Sheriff of Florence County, ancillary to a proceeding by J. D. Gilland against J. J. Liston and another. From an order for petitioner, the Sheriff appeals.
Affirmed.
J. D Gilland, of Florence, for appellant.
Norval N. Newell, of Moncks Corner, for respondent.
The following facts appear: On October 23, 1929, J. D. Gilland obtained a judgment against S.W. Ackerman and J. J. Liston in the sum of $224.75. On that date Ackerman, as tenant in common, owned a one-half interest in a tract of land consisting of 1,582 acres, which he and another had purchased from one J. C. Watkins for $37,000; of this amount $5,000 had been paid, and the balance, $32,000, was secured by a purchase money mortgage. This mortgage was subsequently foreclosed-J. D. Gilland being a party defendant to the action-and the property was bought by the mortgagee at the sale for less than the amount of the indebtedness then due. The only other property owned by Ackerman at the time the judgment was obtained was two lots in the town of Johnsonville, of the value of $150. He later sold these lots to one J. W. Hanna; and Hanna, for the consideration of $150 conveyed them, on March 6, 1935, to Mrs. Watson S. Eaddy, who later built a dwelling house thereon.
On the date the judgment in question was filed, execution was lodged with the sheriff of Florence county, but it appears that nothing was attempted to be done until after Mrs. Eaddy came into possession of the lots. Levy then being threatened by W R. Wall, as sheriff of Florence county, this proceeding in equity, in which injunctive relief was sought, was commenced by Mrs. Eaddy on May 22, 1936. On her verified petition, in which she alleged that the judgment was not a valid lien on the lots for the reason that their value of $150. was less than the judgment debtor's homestead exemption of $1,000. his honor, Judge Stoll, issued a rule requiring Wall to show cause why he should not be permanently enjoined from making such levy; and in the meantime restrained him from proceeding in the matter. The sheriff made return to the rule, and J. D. Gilland appeared and filed an affidavit. The petitioner also submitted an affidavit made by S.W. Ackerman. Judge Stoll found and held, on the hearing before him, that the judgment debtor was entitled to the homestead as claimed, and ordered that W. R. Wall, as sheriff of Florence county, be "permanently enjoined and restrained from levying upon the said lots under any execution or judgment lien against S.W. Ackerman." This appeal followed.
It is not disputed that Ackerman, as the head of a family, was entitled to a homestead; that the lots in question were valued at $150; and that the judgment debtor owned no other property except a one-half interest as tenant in common in a tract of land of 1,582 acres. The appellant contends that Judge Stoll, with these facts before him, erred in holding that these lots were all the real estate out of which homestead could be set off to S.W. Ackerman; the argument being that Ackerman could have been assigned a homestead in the large tract of land regardless of the tenancy in common.
As this ruling of the circuit judge is fully sustained by our decisions, we find no error as complained of. In Barron v. English, 128 S.C. 332, 121 S.E. 782, 783, where a similar question was presented, the court stated the following as one of the principles applicable to the situation: ...
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