Hosford v. Wynn

• Decision Date: 09 March 1885
• Citation: 22 S.C. 309
• Parties: HOSFORD v. WYNN.
• Court: South Carolina Supreme Court

22 S.C. 309

HOSFORD v. WYNN.

Supreme Court of South Carolina.

March 9, 1885

1. Land assigned to a widow as homestead and dower out of her husband's estate was levied and sold by the sheriff for the payment of her individual debt antedating the constitution of 1868. Held , that the purchaser took so much of said land as was assigned for dower, and also the fee in so much of the remainder as descended to the widow burdened, however, with the homestead exemption so assigned.

2. A claim of homestead by a widow as against her husband's debts and out of his estate, cannot be defeated by any debt due by her individually.

3. Under a sheriff's deed to land all the leviable interest of the judgment debtor passes, and the debtor cannot dispute such a deed; but a right of homestead, even after assignment is a mere right to occupy, and is not subject to levy and sale.

4. In a case at law this court cannot modify a judgment of the court below; it can only reverse or affirm.

Before ALDRICH, J., Richland, November, 1883.

Action by Andrew J. Hosford against Martha C. Wynn for the recovery of real property, commenced in March, 1883. The opinion states the case.

Mr. John Bauskett , for appellant.

Messrs. Bachman & Youmans , contra.

OPINION

MR CHIEF JUSTICE SIMPSON.

It is stated in the case herein that in November, 1872, the defendant, appellant, Martha C. Wynn, had the land in dispute assigned to her as her homestead and dower out of her deceased husband's property, and that she has been in possession thereof ever since. At the time of this assignment there was a judgment against her, obtained May 11, 1871, on a note given by her, Mary Wynn, and Margaret Wynn, dated November 20, 1867. The husband of the defendant Martha had died anterior to the date of this note. The land was sold under the above judgment some time in 1882, and was bought by the plaintiff, the titles from the sheriff to the plaintiff being executed June 5, 1882.

Under these circumstances the action below was brought for the recovery of the land. The plaintiff relied upon the sheriff's deeds, the execution of which was admitted. The defendant claimed that she was in possession of the lands as a homestead, which had been duly set apart and assigned to her out of the estate of her deceased husband under the law which allowed homestead to the widow and children of a deceased debtor, and that the sale of the sheriff under a debt of hers, though antedating the constitution, could not disturb her. His honor, the Circuit judge, held otherwise, and ruled that inasmuch as the debt under which the sale was made was executed in 1867, prior to the constitution, a homestead could not be claimed against it. Under this charge the jury rendered a verdict for the plaintiff. The appeal questions the correctness of the judge's ruling.

It is well established that a debtor cannot claim a homestead out of his own property against his own debts antedating the constitution (Gunn v. Barry ), and if such were the facts here there would be no difficulty; but those are not the facts of this case. The defendant is not claiming the homestead out of her own estate as against her own debts, but she claims as the widow of her husband, deceased, out of his estate and assigned to her as against his debts. It may be remarked here that her right to this homestead has not been questioned, although her husband died before the adoption of the constitution. For the purposes of this case, therefore, we must assume that she is legally in possession as homesteadee, with all the rights that appertain to such possession. Now the question is, can a homestead thus assigned to her out of her husband's lands, as against his debts, stand as against her own, which antedate the constitution, or can a judgment obtained against her on such a debt sell the property and divest her of the homestead, as was held in substance by the Circuit judge? It must be remembered that neither of these questions is decided by Gunn v. Barry (15 Wall. , 610) and the other cases following that, because those cases have determined nothing more than that a debtor cannot claim a homestead out of his property as against his debts contracted before the homestead exemption was provided for. Nor does the fact that a creditor obtaining a judgment on such a debt can sell the property of his debtor in defiance of the claim of homestead decide them either, because in that case there is no homestead,...