The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1869-07-29
THE HOMESTEAD LA'W--.AN0THER DECISION
OF JUDGE ORB.

We have been furnished with the annexed ex-
tract from decision of Judge ORR upon the Home
stead Law, which will be of especial interest TO the
legal fraternity:
OCONEE COUNTY-JULY TERM, 1859.
IN THE COMMON PLEAs-EoUITY SIDE.
Joseph r. Shelor vs John Mason, sr., and John
Mason, jr.-BM to FOrscl0ss Mortgage.
The report of the special referees submits for the
consideration Of The Court whether the defendant
and his family now residing on the mortgage prem
ises are entitled to claim and reserve homestead
/ in the same They submit the evidence taken on
reference but make no recommendation to the
Court whether or not homestead should be al
| lowed.
Is the defendant Mason and his family entitled
to have set off and assigned to them family
homestead of the value of one thousand dollars
! within the mortgaged premises, pursuant to the
provisions of the Act of Assembly of 9th Septem-
ber. 1869, entitled "An Actto determine and per-
petuate the Homestead" :.
The single bill and mortgage were executed on
| the 25th day of August, 1866. The Constitution
of 1868 was ratified by the legal voters of the
State on the 14th, 18th and 10th of April of that
year, and was accepted BY Congress without alter,
| alton or amendment the July following. The 32d
Sec of Article II provides that the family home
stead of the head of each family residing in this
State. such homestead consisting of dwelling house,
outbuildings and lands to the value Of one thou
sand dollars" &c., "shall be exempt from attach
ment, levy or sale or any mesne or final process,
issued from any Court" &c. No exception is
made in favor of any lien, debt, or execution e1-
isting at the date of its adoption.
! In all cases. where land was to be sold by any
process from any Court after this section was rat
fled by the people and accepted by Congress, the
head of the family became entitled to homestead
The Act of Assembly to carry into effect this sec
ton, entitled An Act to determine and perpetu-
| ate the Homestead" leaves no ground for con
struction on this question. The first section pro
vides that "whenever the real estate Of any head
of family residing in this State shall be levied
on by virtue of any nesne or final process, issued
| from any Court upon any judgment, obtained upon
any right of action whether arising previous OF
subseouent to the ratification of the Constitution
of the State Of South Carolina, if the same be the
| family homestead of such person, the Sheriff or
other officer executing said process shall cause
homestead such as said person may select not tc
exceed the value of one thousand dollars" &c.
" but the residue of the lands and tenements Of
the head of the family, if any more or other he
shall have. shall be liable to attachment, levy and
| sale"
The General Assembly has further manifested
its solemn and deliberate determination to have
the Constitution and the Statute already referred
to enforced in all cases therein provided for in m
Act entitled San Act to punish Sheriffs and other
officers for violating the Homestead" approved
18th January, 1869. The first section provides
that DO Sheriff or other officer shall enforce exc
cution in any other manner than is prescribed In
sections and of the Homestead Act. The Sc,
cond section provides that if any person shall sell
4 comnlyinr with section
of the Homestead Act, he shall for the first offence
be deemed guilty of malfeasance in office. and on
conviction shall be fined not less than 500 and
not more than 1000; and for The second otence
shall be dismissed from office.
The Constitution and these Acts prescribe sc
clearly the duty of public officers in making sales
under process from any Court, it would seem to be
hardly necessary in decree to direct the officer
ordered to sell to set off and assign homestead tc
the head of family, as failure to do so would
be at his peril, without an order.
But as the question is raised in the pleadlngs
in the report of the special referees in this case
and in the argument of counsel rs to defendants
right to have the family homestead set of and as
signed, will state my views on the question.
| It is objected to the Constitution of the State
and the Acts OF Assembly securing homestead a.
to anecedent debts, liens and judgments, that they
are violation of that clause in the Constitution
the United States which prohibits any State from
passing "any law impairing the obligation Oh con
tracts" Z.
| Is not the objection met by numerous authori
ties in the Courts of sister States, and oy eminen
egal writer's, recognizing the right of State Legs
| atures TO pass laws e4empting property OF a
debtor from levy or sale even for anteeedent debts
and is not the principle recognized in various de-
cisions of the Supreme Court of the United States
In Morse Us. Gould, Herman IN. T. 28l, Judge
DEMO, delivering the opinion of the Appeal Court
said: 81 regard the Act of 1912 (extending the
exemption law of that State to team and addl
tiona household etfeets) as q provision clearly
within the competency of the Legislature, and one
which they might lawfully apply to oil future pro-
ceedings in Courts, whether such proceeding:
shall relate to existing or future causes OF action
| In this case q judgment and execution had been
obtained in an inferior Court before the exemption
| law was passed, and the Court held that the ex
| emption was valid even as against such Judgment
The abstract Of Judge Denio's opinion is: I" First
| The Act exemptlug certain property from levy OF
sale on execution IN. Y. Statutes, l842-l93) ap'
plies to judgments and executions on debts con
tracted before we'll as after its passage Second
This Act merely modi6es the remedy for enforcing
contracts and neither destroys it nor substantial
lv impars its efficiency Therefore, it does mol
conflict with the provisions Of the Constitution Of
the United States forbiddng any State to pass
law lmpairing the obligation of contracts, and is
| valid" -
In Bigelow us Pritchard, Judge Putnam dsliv'
erine the opinion of the Supreme Court of Massa-
chusetts, said "that the Legislature might lawful
ly diminish the creditors remedy to enforce payment
by exempting part of the property of the debtor
from attachment or nesne process, or levy or exc
In Rockwell Us. Hubbell Douglass 1877, in the
Supreme Court of Michigan, it is held "that prop
ertv NAV be exempted from execution for debts
contracted before the zaw of exemption s0a' en-
acted"
The Supreme Court of Georgia. in recent case,
has decided that the exemption Of homestead OF
the value of two thousand dollars authorized py
the Constitution of that State, from levy or sale
even for antecedent debts liens and judgments, is
valid, and does not impair the obligation Of con-
| tracts. The same point has been ruled, or the
same principle involved has been decided, in other
| States of the Union