Nance v. Hill

• Decision Date: 07 March 1887
• Citation: 26 S.C. 227,1 S.E. 897
• Parties: Nance v. Hill.
• Court: South Carolina Supreme Court

1 S.E. 897

(26 S.C. 227)

Nance

v.Hill.

Supreme Court of South Carolina.

March 7, 1887

1. Homestead—Assignment—Levy—Exemption.

Under Gen. St. S. C. § 1994, which provides that the homestead shall be exempt from levy as well as sale under execution, and the Code of Procedure, § 310, which exempts the homestead from the lien of a judgment, a levy is not a condition precedent to the right to make application for homestead, and the judgment debtor may, where there is an execution in the hands of the sheriff, but not levied, notify the sheriff that he demands that his homestead be set off.

2. Same—Residence.

Under the present constitution of South Carolina, which provides that a debtor shall be entitled to "a homestead in lands, " etc., instead of, as in the former constitution, "the family homestead, * * * such homestead consisting of dwelling-house, " etc., it is wholly immaterial whether or not the debtor lives on the land in which he claims homestead.¹

3. Same—Undivided Tract.

While a person may be entitled to claim a homestead in his undivided interest in real estate after his share therein has been duly ascertained and set off to him, an application for the assignment of a homestead out of an undivided interest in real estate, before the same has been partitioned, is premature.¹

4. Same—Assignment—Appointment of Appraisers—Qualifications of.

The directions in a sheriff's notice requiring the appraisers appointed to allot the homestead to be sworn, as well as the recital in their return that they were so sworn, are, in the absence of evidence to the contrary, sufficient evidence that the appraisers were duly qualified.

Appeal from court of common pleas, Laurens county.

Benet & McGowan, for appellant.

Ball & Watts, for respondent.

McIvee, J. The plaintiff, having recovered a judgment against the defendant upon a debt contracted since the adoption of the amendment to the constitution in 1880, lodged his execution with the sheriff for the enforcement of said judgment. Thereupon the defendant gave notice to the sheriff, in writing, that he demanded that his homestead be set off to him under said execution, naming in said notice one Hogan Goggans as appraiser on his part. Thereupon the sheriff issued his notice in writing, addressed to said Goggans, one J. C. Wade, and one George C. Risor, appointing said Goggans as appraiser on the part of the defendant, the said Risor on the part of the plaintiff, and said Wade on the part of the sheriff, and directing them, "after being duly sworn, " to appraise, and set off by metes and bounds, a homestead for defendant. These appraisers, in due time, made their return in writing, wherein they say that, "having duly qualified before W. S. Pitts, trial justice, " they had set off, of the estate of said Hill, "the following described property, to-wit: Half interest in one tract of land known as the 'Todd Place, ' containing three hundred and fifty acres, " giving the boundaries, and estimating the value at $750, and also certain personal property therein named, with itsvalue, amounting to much less than the amount allowed by law. To this return the plaintiff filed exceptions, all of which were overruled by Judge Hudson, who confirmed the return, saying: "J can find nothing in the amendments to the constitution and acts of legislature that prevents a head of a family from having a homestead set off in lands that he does not reside on, or holds in joint tenancy or tenancy in common, but rather the contrary." From this judgment or order the plaintiff appeals, substantially upon the following grounds: (1) Because there was no levy under the execution; (2) because the proceedings did not show, either that the defendant was a resident of the state, or that he was the head of a family, or that he lived on the land, or lands appurtenant to that assigned; (3) because no homestead can be assigned in an undivided interest in real estate; (4) because the appraisers were not sworn, and none of them were appointed by the plaintiff.

As to the first ground, we do not think any levy was necessary, or could in fact properly be made, if it is made to appear that the defendant was entitled to a homestead in the land in question. The act (section 1994, Gen. St.) expressly declares that the homestead shall be exempt from levy as well as sale under execution; and, as section 310 of the Code of Procedure expressly exempts such property from the lien of a judgment, and as there could be no levy unless there was a lien, it follows that a levy is not a condition precedent to an application for a homestead.

As to the second ground it may be stated that the case is exceedingly meager in its statements of facts; so much so that the main fact upon which appellant's strongest ground of appeal rests, to-wit, that the defendant was only entitled to an undivided interest in the land out of which the homestead was allowed, does not appear except by implication. Under these circumstances we must infer from the language used by the circuit judge, as well as from the absence of any statement to the contrary, that it was either admitted, or in some other way made to appear, that defendant was the head of a family, and a resident of this state. Whether the defendant lived on the land out of which the homestead was claimed is wholly immaterial. The language of the constitution, as amended in 1880, is very different from that used in the original constitution. There the exemption was of "the family homestead, * * * such homestead consisting of dwelling-house, " etc.; while the language of the amended constitution is: "A homestead in lands, " etc. In the one case the designation of the property exempted was definite and specific, while in the other it is indefinite and general. But, as this question has already been distinctly decided in the recent case of Swandale v. Swandale, MS. opinion filed October 22, 1886, we need do no more than refer to that case.

The third ground presents a question of more difficulty. While we do not deny that a person may be entitled to claim a homesteadin his undivided interest in real estate after his share therein has been duly ascertained and set off to him, it seems to us that there is an insuperable practical difficulty in assigning a homestead out of an undivided interest in real estate before the same has been partitioned. The act in terms requires that the homestead shall be set off "by metes and bounds, " and this is impracticable before partition; for until partition it cannot be known with any degree of certainty what particular portion of land belongs to any one of the tenants in common, or, indeed, whether any of it will be assigned to a given tenant. To use the language of Dunkin, Ch., in Keckcley v. Moore, 2 Strob. Eq. 23: "It is quite manifest that until partition made, it is impossible to determine whether the child will be entitled to any or to what portion of the estate." In that case the purchaser at a sale for partition sought to be relieved from complying with his bid, on the ground that there was an unsatisfied judgment which was a lien on the undivided interest of one of the children, and the court held that in such a case the title of the purchaser could not be affected by such judgment, and required him to comply. Now, if hereafter the land in which the defendant seems to have an undivided interest should be sold for partition, serious complications might arise as to the rights of parties, and perhaps the defendant might have to renew his application for exemption of his share of the proceeds of sale. At all events, in view of the fact that it is practically impossible to set off a homestead by metes and bounds in an undivided interest in real estate, and inasmuch as neither the constitution nor the act mentions such an interest, but simply provides for "a homestead in lands, whether held in fee or any lesser estate, " probably because of this practical difficulty, we think the conclusion follows that the court has no authority to assign a homestead out of an undivided interest in real estate, and therefore that the present application is premature. But, as we think it clear that the object of the constitution was to confer this exemption upon the head of every family residing in this state, we do not think that the fact that it is impracticable now to make the assignment should defeat the defendant's right to demand such exemption at the proper time; and we suppose that the court would, under a proper proceeding, and upon a proper showing for that purpose, by its preventive process, interpose to restrain the sale of his undivided interest until he could have an opportunity, by partition, to have his share ascertained and set apart to him, in which he might then demand that a homestead should be set off to him. We think, therefore, that the judgment or order appealed from should be reversed, solely upon the ground that the application for assignment of homestead is premature, and without any prejudice whatever to any application he may hereafter make.

Under the view just presented, the questions raised by the fourth ground are no longer practical; for, as the assignment of homestead must be set aside on the ground above stated, any informalities or

[1 S.E. 721]

1876, they recovered a judgment against Thomas Kirk and Pedro, Petty & Bond for $317.12, with interest and costs, upon which judgment execution immediately issued, and went into the hands of the sheriff of said county to be executed;" and they profess to have filed the entire record in said suit and attachment as a part of their answer.

It shows substantially the fact stated above, except that the return of the constable of the levy of this attachment, five days after the recording of this deed, was upon "the property of the defendant Thomas Kirk embraced in the list annexed." This list was an inventory of goods and merchandise, amounting in value to $497.66. But there was nothing in the return, or in any part...