Fant v. Gist

• Decision Date: 16 September 1892
• Citation: 15 S.E. 721,36 S.C. 576
• Parties: FANT v. GIST. LAZARUS et al. v. SAME.
• Court: South Carolina Supreme Court

15 S.E. 721

36 S.C. 576

FANT v. GIST.

LAZARUS et al. v. SAME.

Supreme Court of South Carolina

September 16, 1892

Appeal from common pleas circuit court of Newberry county; HUDSON Judge.

Application by defendant, Gist, for the admeasurement of homestead on an attempt by the sheriff to levy upon and sell certain real estate to satisfy judgments in the cases of Samuel F. Fant against Richard v. Gist, and E. M. Lazarus & Co. against Richard V. Gist, in the first of which cases Robert A. Taylor is assignee of plaintiff, and, in the second, survivor of said firm. From a judgment for defendant, plaintiff appeals. Affirmed.

J. F J. Caldwell, for appellant.

George S. Mower and Johnstone & Cromer, for respondent.

McIVER C.J.

The only question presented by this appeal is whether there was any error on the part of his honor, Judge HUDSON, in sustaining the respondent's claim of homestead. The facts are few and undisputed, and fully appear in the testimony set out in the "case." From the testimony it appears that Richard V. Gist, up to the time of the death of his wife, or, rather, until his dwelling house was destroyed by fire, lived on the land out of which the homestead in question was assigned, with his family, then consisting of his wife, an orphan boy, named Johnny Rutherford, and his wife's niece, Janie Nance, whom Gist and wife had informally adopted; that in the fall of 1882 the said dwelling house was destroyed by fire, whereupon Gist removed temporarily with his family into the town of Newberry, where he remained while his house was being rebuilt; that his wife died in 1883, and shortly before that said Johnny Rutherford died, leaving as the only surviving members of the family which had lived together in the house before it was burned his wife's niece, whom he had adopted, and himself; that said niece was supported entirely by said Gist, and, except when at school, stayed temporarily with her widowed mother and at other times lived with Gist.

The only question raised is whether Gist can be regarded as the head of a family in the sense of those words as used in the homestead provisions. While it is true Gist has now no wife or children, and no father or mother or other blood relation living with and dependent upon him for a support, yet it is clear that, prior to the death of his wife, he was the head of a family, consisting of the persons named above; and the practical question is whether...