Moyer v. Drummond

• Decision Date: 28 February 1890
• Citation: 10 S.E. 952,32 S.C. 165
• Parties: moyer v. drummond.
• Court: South Carolina Supreme Court

10 S.E. 952

(32 S.C. 165)

moyer

v.drummond.

Supreme Court of South Carolina.

Feb. 28, 1890.

Homestead — Head of Family — Partnership Property.

1. A brother who lives with his invalid sister, who is dependent on him for support, and whom he does support, is the head of a family within the meaning of the homestead laws, though his sister owns the property in which they live.

2. In South Carolina, the exemption allowed the head of a family applies to personal property held in partnership.

Appeal from common pleas circuit court of Spartanburg county; Hudson, Judge.

Bomar & Simpson and S. M. Pilgram, for appellant.

R. K. Carson, for respondent.

McIver, J. This was a proceeding to subject the interest of defendant in a certain partnership, of which he was a member, to the payment of a debt due by him to the plaintiff, under proceedings supplementary to an execution. Defendant claimed that his interest in said partnership did not amount to the sum of $500, and was therefore exempt under the homestead laws of the state. The circuit judge held that the defendant was not entitled to the exemption claimed for two reasons: (1) Because he was not the head of a family; (2) because the homestead exemption " is not allowable in partnership property." From this judgment defendant appeals, imputing error to the circuit judge in both of said rulings.

The question whether one is the "head of a family, " in the sense of that phrase as used in the homestead law, is a question of law, to be determined from a consideration of the facts in a given case. The question is, what is the legal conclusion to be drawn from the facts presented? To determine this question it is necessary to consider, first, what is meant by the phrase "head of a family, " as used in the homestead law, and then to inquire whether the facts in a given case bring the applicant within the true meaning of that phrase. The accepted definition of the word " family, " as given by lexicographers, and approved in many cases, seems to be: "The collective body of persons who live in one house, under one head or manager. " The number of persons thus living together is not at all important, except that there must be more than one; as it is quite certain that two persons may constitute a family, e. g., husband and wife, father and child. It is also well settled that it is not necessary that the relation of husband and wife nor that of parent and child should exist in order to constitute a family. Bradley v. Rodelsperger, 3 S. C. 226; Gar-aty v. Du Bose, 5 S. C. 493; Moore v. Parker, 13 S. C. 486; Rollings v. Evans, 23 S. C. 316. But, where these relations are absent, we have no case in this state, so far as we are informed, which decides distinctly what other relations existing between persons living together will be sufficient to constitute a. family; but, as was said by Simpson, C. J., in Rollings v. Evans, supra, the term " family " is not to be taken in a restricted sense, but "in its ordinary sense, which includes persons living in one house, and under one head or manager;" and, as was said by Moses, C. J., in Garaty v. Du Bose, supra: "The exemption was intended, not alone as a benefit to the head of the family, but to those whose relations to the head demand, on the one hand, support and protection, and, on the other, require a contribution, by the aid of their labor, to the maintenance and conduct of the general establishment to which they belong. * * * It would not follow that, although the head of a family might not be a parent, the one substituted as the head would lose the favor of the provision; for it would extend to one having under his roof those so connected with him by ties of residence and association as to become part and parcel of his household, changing their domicile with him, andhaving no residence but that which they enjoy under his favor." We do not think that the former chief justice in using the words "his roof" meant to imply, as is urged by counsel for respondent, that one of the conditions necessary was that the person claiming to be the head of a family should be the owner of the house in which the collective body of persons alleged to constitute the family resided; for, as matter of fact, it is well known that many persons who are undisputed heads of families reside in houses which they do not own, but which...