Homestead Bldg. & Loan Ass'n v. Enslow
| Citation | 7 S.C. 1 |
| Parties | HOMESTEAD ASSOCIATION v. ENSLOW. |
| Decision Date | 15 February 1876 |
| Court | South Carolina Supreme Court |
The homestead exemption allowed by the Constitution and Acts of Assembly cannot be taken against a mortgage given since the adoption of the Constitution and before a homestead exemption had been claimed and set off in the mortgaged premises.
BEFORE REED, J., AT CHARLESTON, APRIL TERM, 1875.
Action by the Homestead Building and Loan Association against Joseph A. Enslow, the Citizens' Building and Loan Association of Charleston, and others.
The case was referred to Thomas Y. Simons, Esq., as Referee, in whose report the facts are fully stated.
The report is as follows:
Joseph A. Enslow, of the city of Charleston, being the head of a family, on the 4th day of February, 1871, became seized in fee, by purchase, of the lot of land, with the dwelling house and outbuildings thereon, situate on the North side of Society street, the subject of this action.
Mr Enslow being thus seized, continued to occupy the premises as a residence for his family and himself until the 18th day of March, 1875, when the premises were sold under the judgment and decree of this Court.
In February and April, 1872, and April, 1873, Mr. Enslow, being thus in possession as owner of the property, executed and delivered to the Homestead Building and Loan Association his three several bonds, secured by his three several mortgages of the lot and buildings in Society street.
In February, 1874, Mr. Enslow executed and delivered his bond to the Citizens' Building and Loan Association, secured by a fourth mortgage of the said premises, and in June, 1874 executed and delivered his bond to Egisto P. Fabbri, in trust, secured by a fifth mortgage of the said premises.
Proceedings in foreclosure were instituted in this action, and Mr Enslow, one of the defendants, in his answer, sets up a claim to a homestead exemption of one thousand dollars in the said real estate.
This Court, on the 24th of February, 1875, ordered, among other things, a foreclosure of the mortgages, a sale of the property, and a reservation from the net proceeds of sale of the sum of twelve hundred dollars, subject to the further order of this Court, to abide the claim of the defendant, Joseph A. Enslow, for a homestead in said premises and costs and expenses that may be incurred in the determination thereof.
The question, therefore, submitted for my judgment, is, whether, under the Constitution and laws of this State, Mr. Enslow is entitled to a homestead exemption in the premises thus mortgaged.
The homestead is entirely a matter of statute regulation. It was unknown at the common law. Nor can there be much light derived from the decisions in other commonwealths, because these depend upon the language and provisions of their respective Acts of Assembly. We must look, therefore, to the enactments in the State for a solution.
While it may be conceded that a statute creating a homestead cannot have a retroactive effect, it is clear that it operates upon all contracts entered into after it becomes of force upon the statute book. It there forms part of the law of the land, having relation to and regulating all rights and duties which spring out of its existence.
Section 32, Article XI, of the Constitution of this State, adopted by the people in Convention assembled, in 1868, declares:
" The family homestead of the head of each family residing in this State, such homestead consisting of dwelling house, outbuildings, and lands appurtenant, not to exceed the value of one thousand dollars, and yearly product thereof, shall be exempt from attachment, levy or sale, on any mesne or final process issued from any Court" -" Provided , That no property shall be exempt from attachment, levy or sale for taxes, or for payment of obligations contracted for the purchase of said homestead or the erection of improvements thereon."
The words of the Constitution are imperative-" shall be exempt from attachment, levy or sale ." The exceptions against which the homestead shall not prevail are few and explicit-(1) taxes, (2) payment of obligations contracted for the purchase of said homestead, (3) the erection of improvements thereon. Expressio unius, exclusio alterius .
In this action there is a sale prayed for, and obtained, under the judgment and decree of Court. The bonds or obligations to secure the payment of which the mortgages were executed are neither for taxes, purchase money or improvements.
The action is, by the foreclosure and sale of the premises mortgaged, to enforce the payment of the contracts or obligations, of which the bonds are the representatives.
Whether it was wise for the people in convention to declare that there shall be a homestead exemption, except in the few instances so expressly and implicitly asserted, is not the question. The simple issue is, what does the Constitution provide?
I am of opinion, therefore, as a matter of law, that even against the plaintiff's bonds and mortgages, the defendant, Joseph A. Enslow, is, as the head of a family, entitled to the exemption claimed.
The proceeds of sale, however, after allowing the homestead, is sufficient for the payment of the plaintiff's claim. The parties, therefore, more especially interested are the defendants, the Citizens' Building and Loan Association, and Egisto P. Fabbri, in trust, who are subsequent mortgagees.
The case of the homestead exemption is much stronger in reference to their obligations. The Constitution, (Section 32, Article XI,) having laid down the fundamental and general principles which should be applicable, made it the duty of the General Assembly to enforce the provisions of the homestead by suitable legislation.
The General Assembly, by " An Act to revise and amend an Act entitled 'An Act to reduce all Acts and parts of Acts to determine and perpetuate the homestead into one Act, and to amend the same,' " D' approved February 22, 1873, after re-declaring in substance the provisions of the Constitution and providing for a money value of one thousand dollars, where it was impracticable to set out the homestead in land in kind, enacts:
The bonds and mortgages to the Citizens' Building and Loan Association, and to Egisto P. Fabbri, in trust, were created and executed respectively in February and June, 1874, more than a year after the passage and approval of this Act of the Legislature. Their execution and delivery surely, therefore, in view of the express and unequivocal terms of the Act, can scarcely be held to be a waiver of the homestead. I find, therefore, as a matter of law, that the defendant, Joseph A. Enslow, is entitled to one thousand dollars out of the proceeds of the sale of the premises in Society street, made under the process of this Court, and recommend that out of the twelve hundred dollars reserved for this issue, the payment of this amount with interest from the day of sale, and the costs and expenses attending the litigation of this question, and that the residue be applied to the mortgages unpaid, according to the priority of their claims, as heretofore reported.
The defendants, the Citizens' Building and Loan Association and Egisto P. Fabbri, excepted to the conclusions of the Referee, as to the homestead in this case, because the defendant, Joseph A. Enslow, is not entitled to homestead out of real estate mortgaged by him.
The decree of the Circuit Judge is as follows:
The report being read, and counsel being present and waiving argument, it is ordered that the above exception be overruled, and the report of the Referee in this cause be confirmed and made the decree of this Court.
The defendants, the Citizens' Building and Loan Association, appealed on the following grounds:
1. Because, under the Constitution and laws of South Carolina, no homestead exemption is given in property mortgaged until the mortgages are satisfied.
2. Because, unless property has been specially set apart as a homestead in the manner provided for by law, the right to sell is indisputable, and the right to mortgage follows the right which the owner of the fee has to dispose of the property.
Tobias , with whom was Cohen , for appellant:
There is but one question in this case, and that is, whether Joseph A. Enslow, a bankrupt, who had mortgaged a certain piece of property twice in 1872, once in 1873, and twice in 1874, is entitled to claim homestead in that property as against the first of the two mortgages given in 1874, in a suit for foreclosure of mortgage in which he and his assignee in bankruptcy were parties, and in which the decree was filed after he had been adjudicated a bankrupt.
While this question narrowed down to these limits is of very little consequence, except to the parties immediately in interest, being, as it is, confined to a very small number of cases, still the establishment of principles on which this and kindred questions are to be determined is of the greatest importance, as it is necessary to enable all who are interested in making investments in real estate to act with certainty. What society requires is, that rights and liabilities should be accurately defined. Once fixed, men can regulate their actions accordingly; but when they are uncertain, business is impeded, the everyday relations of life are obstructed, and society is thrown into confusion.
Homestead laws are of very recent origin, and are very different in the several States in which they have been enacted. Hence it is, that in the discussion of the...
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