The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1869-08-03
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nexeQ 0xtraCt from Q0cf6lOQ Oh 0uuSo
Orr gpon the Homestead law, which viii
be- oskpecial interest tc the legal frater-
nity: 3 iJ
IN The Common Pleas sIEgaity Side:
and John Mason, Jr.-BiH to Foreclose
Mortgage,
The report OF the special referees sub
mits for the consideration of the Court
whether the defendant and his family
now residing on the mortgage premises
are entitled to claim and reserve home.
stead in the same. They submit the evil
dence taken ON reference, but make no
recommendation TO the Court whether
or not Homestead should be allowed.
Is the defendant Mason and his family
emitted to have set of and assigned to
them family homestead Of the value of
81, 900 within the mortgaged premises,
pursuant to the provisions of the Act of
Assembly of 9th September. 1869, enti-
tied "An Act to determine and perpetu-
ate the Homsstead2"
The single bill and mortgage were exc
cuted on the 25th day of August, 1866.
The constitution of 1868 was ratified by
the legal voters of +T4e 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 S2d Section of Article III provides
that .'the family homestead of the head
Of each family residing in this State, such
hor stead consisting of dwelling house,
out-Duildings and lands to the value of
81, ,000," &c, 'tshall be exempt from at
tachment, levy or sale or any maesne or
final process, issued from any Court"
g.. No exception is made in favor of
any lien, debt or execution existing ut
the date Of its adoption.
In all cases where land was to be sold
by any process from any Court, after this
section was ratified by the people and
accepted by Congress, the head of the
family became entitled to homestead.
Tho Act of Assembly to carry into effect
this section, entitled can Act to deter
mine and perpetuate the Homestead"
leaves no ground for construction on
this question. The first section provides
that whenever the real estate of any
head OF family residing in this State
shall be levied on by virtue of any miesne
or final process, issued from any Court
upon any judgment, obtained upon any
right of action, whether arriving pre-
vious or subsequent to the ratification of
the Constitution of the State of South
Carolina, ;f 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 to exceed the value of
$1,000," &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
aud sale."
The General Assembly has further ma
infested its solemn and deliberate deter
mination to have the constitution and
the statute already referred to enforced
in all cases therein provided for, in an
Act entitled "An Act to punish Sheriffs
and other officers for violating the home
stead" approved 18th January, 1869.
The first section provides that no Sheriff
or other officer shall enforce execution in
any other manner than is prescribed in
sections and Q of the Homestead Act.
The second section provides that if any
person shall sell any real estate without
stead Act, he shall, for the first offence,
be deemed guilty of malfeasance in Of
flee, and OH conviction shall be fined not
less than $500 and not more than 81, 900;
and for the second offence shall be dis
missed from Office.
The constitution and these Acts pre-
scribe so clearly the duty of public Of
ficers 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 n
homestead to the head of family, as a
failure to do SO would be at his peril,
without an order.
But as the question is raised in the
pleadings, in the report of the special
referees in this case and in the argument
of counsel as to Defendants right to
have the family homestead set off and
assigned. will state my views on the
question.
It is objected to the Constitution of
the State and the Acts of Assembly secur-
ing q homestead as to antecedent debts,
liens and judgments, that they are vio-
lation of that clause in the Constitution
of the United States which prohibits any
State from passing ''any law impairing
the obligation of contracts"
Is not the objection met by numerous
authorities in the Courts of sister States,
and by eminent legal writers, recognizing
the right of State Legislatures to pass
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