Ketchin v. Mccahley.1

• Decision Date: 30 April 1890
• Parties: Ketchin . v. McCahley.1 McCarley . v. Ketchin.
• Court: South Carolina Supreme Court

11 S.E. 1099

26 S.C. 1

Ketchin .

v.McCahley.¹

McCarley .

v.Ketchin.

Supreme Court of South Carolina.

April Term, 1890.

Homestead—Sale—Constitutional Law.

1. Land worth less than $1,000, and occupied by the owner and his family as a home, may be sold by him free from the lien of a judgment entered while it was so occupied, though it has not been appraised and set apart to the debtor as a homestead; Gen. St. S. C. § 1994, providing that a homestead, not exceeding in value $1,000, shall be exempt to the head of every family residing in the state, and Code Civil Proc. S. C. § 310, that judgments shall not in any case be a lien on real property of the debtor which is exempt from levy.

2. The purchaser in such case may enjoin the sale of the land under the judgment to prevent a cloud on his title.

3. Code Civil Proc. S. C. § 310, is not unconstitutional as an attempt to extend the provisions of the homestead law beyond the limits fixed by the constitution, which requires that a homestead not exceeding in value $1,000 shall be exempt from levy and sale to the head of every family residing in the state.

4. Gen. St. S. C. § 1995, provides that, when a homestead is levied on, appraisers may be appointed who shall assess the value, and if it exceeds $1,000 shall set apart a portion as a homestead, and make return thereof; and that, "upon such return being recorded in 40 days after the proceedings have become final, the title to the homestead so set off and assigned shall be forever discharged from all debts of said debtor then existing or thereafter contracted." Held, that the proceedings under this section do not create the exemption, but simply designate finally the specific property to which it had previously attached.

5. A debtor having, after entry of judgment against him, conveyed his homestead to his wife, and ceased to reside thereon, he cannot, after a levy under the judgment, have the land set apart to him as a homestead under said section 1995, the conveyance not having been set aside for fraud on creditors. Section 1994 exempting a homestead, "whether held in fee or any lesser estate, " he has in such case no interest to which the exemption can attach.

Appeal from common pleas circuit court of Fairfield county.

J. E. McDonald, for appellants.

H. N. Obear, for appellees.

McIver, J. These two cases, though heard together here, are of such a different character as to require that they shall be considered separately. The facts out of which the controversy in the first-named case arises, are, substantially, as follows: On June 29, 1882, the defendant, John D. McCarley, caused to be filed in the office of the clerk of the court of the common pleas for Fairfield county a transcript of a judgment previously obtained by him in a trial justice's court against William W. Ketchin, on a cause of action arising since the adoption of the constitutional amendment of 1880, relating to homesteads, and the act of the general assembly passed in pursuance thereof. At that time, William W. Ketchin was the head of a family, residing on the land which is the subject-matter of this suit, the value whereof was, and still is, $700; and at the time of the recovery of said judgment he had no other lands, nor has he at any time subsequently owned any other land. On May 18, 1883, while still occupying the said land as a family residence, the said William W. Ketchin conveyed the same to Harriet M. Ketchin, the plaintiff. About January 1, 1884, the said William W. Ketchin and his family moved off said land to a house and lot in the town of Winnsboro, which had been bought by his wife, the plaintiff herein, where he and his family now reside, only $300 of the purchase money of the Winnsboro house and lot having been paid. On December 9, 1884, the defendant levied on the tract of land first above mentioned under the execution issued to enforce his judgment above referred to, and proposes to sell the same in satisfaction of said judgment. Neither at the date of the conveyance by the said William W. Ketchin to the plaintiff nor at any time previous had he claimed or had assigned or set apart to him any homestead in or out of said tract of land, or any part thereof. The plaintiff brought this action to enjoin the proposed sale of the said tract of land upon the ground that the land in question is not subject to levy and sale under said judgment. The circuit judge held otherwise, and rendered judgment dismissing the complaint. From this judgment, plaintiff appeals upon the several grounds set out in the record, which need not be repeated here.

Before proceeding to a consideration ofthe case upon its merits, it will be necessary, first, to dispose of a preliminary objection as to the form of proceeding. Respondent contends that in a case like this there is no ground for an injunction, because, if the appellant's theory be correct, — that the judgment has no lien on the land, — then the attempted levy and sale will amount to nothing, and the plaintiff's title cannot be affected thereby. In the first place, it will be observed that it does not appear that this point was ever presented to or considered by the court whose judgment we are called upon to review. It is not even presented in any of the exceptions or grounds of appeal, but was for the first time raised in the argument here. But, as counsel has contended that while, under the rule, a judgment may not be reversed upon a point not raised below, except in cases involving questions of jurisdiction, yet it may be affirmed upon a ground not taken in the circuit court, we, perhaps, are at liberty to consider the question. The jurisdiction of a court of equity to prevent as well as to remove a cloud upon the title to real property seems to be well settled. High, Inj. § 269. In the next section this writer proceeds to say: "It is difficult to establish any exact test, which will be applicable in all cases, to determine what constitutes such a cloud upon title as to authorize a court of equity to interfere for its prevention. It has been held, however, that, if the sale which it is sought to restrain is such that in an action of ejectment brought by the purchaser under the sale the real owner of the property would be obliged to offer evidence to defeat a recovery, then such a cloud would be raised as to warrant the interference of equity to prevent the sale." Now, if this case be subjected to the test just mentioned, it would seem to be one in which the interposition of a court of equity by injunction would be warranted; for, if the sale is allowed to proceed, then the plaintiff herein could only protect herself in an action of ejectment brought by the purchaser at such sale by offering evidence showing that though the title to the land was in the judgment debtor at the time the judgment was entered, and thus it was apparently liable to the lien of the judgment, yet, in fact, it was not so by reason of its exemption under the homestead law. But, in addition to this, until this question of homestead is adjudicated, the records would show that the plaintiff held her land subject to the lien of the defendant's judgment, inasmuch as her conveyance was subsequent in date to the entry of the judgment; and hence, if she undertook to put her land on the market for sale, she would have to do so with this cloud upon her title in the shape of this apparent incumbrance. The question, however, seems to have been distinctly decided elsewhere in accordance with this view, though we are not aware of any case in this state where it has been considered. In High on Injunctions, (section 275,) it is said: " A bona tide purchaser of real estate, for a valuable consideration, may restrain a sale of the property under execution when he has purchased after the rendition of the judgment, but before the execution was delivered to the sheriff, the judgment not being a lien upon the property, since such sale would operate as a cloud upon his title; and, where an execution creditor is proceeding unlawfully to sell the homestead interest of his debtor, he may been joined upon the same ground. " The cases of Green v. Bank, 10 Rich. Eq. 27, and Wilson v. Hyatt, 4 S. U. 369, relied on by respondent, do not appear to us to be applicable. In the former, the question here presented does not seem to have been considered; and in the latter, the parties asking for the injunction claimed a naked legal title, in which there was no apparent defect, and upon which there was no apparent incumbrance, for their title was prior in date to the judgment under which it was proposed to sell the land.

We proceed, then, to consider the main question in the case, which, accepting the statement of it as made by the counsel for respondent in his argument, is whether the tract of land described in the complaint is now subject to the lien of McCarley's judgment and the subject of levy and sale thereunder. This question has been determined by our recent decision in the case of Cantrell v. Fowler, 24 S.C. 424; but, as counsel has asked and obtained leave to be heard in opposition to the principles decided by that case, we are quite willing to consider the question again, bearing in mind., however, the importance of stability in the decisions of a court of last resort, and remembering that vacillation is sometimes worse in its effects than abstract error. If, however, it clearly appears that we have fallen into an error, we will gladly seize the opportunity of correcting it. We have therefore given careful consideration to the able and ingenious argument, of the counsel for respondent, but we must say that it has failed to convince us of any error in our former decision. Several supposed cases have been presented, in which it is argued that the doctrine laid down in Cantrell v. Fowler will be difficult of application, or will work hardship; but without undertaking now to consider such cases, as it will be time enough to do so when they practically...