The Newberry herald. [volume] (Newberry, S.C.) 1865-1884, 1874-10-07

y L,
SUPREME rOrRr.-riIE CHILDREN
or DECEASED PARENTS ENTITLED TO
HOLD rHE HOMESTEAD IN rLnlE-
TrlTY.
The decision Of the Supreme Court
II reference to homestead rnaiudcrS.
which we publish below. is one of
great Importance to every family in
the State. 1t Involves the setting
aside OF the homestead act of 1869. Sc
lar rs that act makes the homestead
subject TO execution and sale hy
creditors of the dcvra;ud '.hrad of the
family when the youngest child comes
o. age. Judge Maekry. who render.
cd tn" decision in the court below
from which the appeal was taken, held
that the citizen takes the homestead
exemption, not rs an individual, but
III his representative character as the
"hcad Of Il lamily.' In other words,
that the "hrad of Il family" is within
the intent and meaning Of the consti-
tuition, simply the trustee and the
family the cc<t"i qai trust--that as
the individual is the unit OF the fam
ily, 50 the family is the unit of the
State, and the prime purpose of the
homestead clause in the constitution
Is to secure Il 'local habitation" for
the family. Hence to deprive the
family Of the homestead on the de-
cease of its natural protector violates
the reason Of the constitutional pro-
vision, and that, too, when the family
most needs its Shcltcring protection.
Judge Mackcy further held that the
term ''cNcmpt' in the constitution, as
applied to tie homestead reservation,
"cans in law, as in its ctylnolosy, a
cutting off or perpetual reservation of
the homestead from execution and
sale I"r debt. The homestead, move
over, being in the nature of Il grant,
Judge Nlackcy held that the conStruc-
ton which gives the largest privileges
I" the grantee, must be regarded us
the true construction, whenever Il
doubt arises in the ease irola the terms
OF the statute. This is the giSt OF the
opinion Of Judge Mackcy, which has
been sustained by the unanimous
voice Of the Supreme Court.
THE DECISION.
SUPREME CouRT~-Novcmbcr Term,
lSI3.-S. McKcowcn VS.. j. S. Car.
raj ct al. Appeal from Court of
Common Pleas for Chester, Sixth
Circuit. Mackcy, G. j. Homestead
Rcmaindcrs.
Opinion by Willard, \. j. (Moscs,
G. j., and Wright, j. j., concurring).
The circuit judge having dismissed
the complaint on complaint and an
swcr alone, it is necessary for us to
consider whether upon the facts
stated by the plaintiff is entitled to
the relief demanded by him, or to
any relief whatever.
The plaintiIr claims TO be the owncl
III fec Of certain lands in the posses
sion Of the claimants. lis title, ms
alleged, was derived as purchaser Il,
Il shcrIf's sale, under judgment re-
covrrcdin 1880 against James Youngc
Margaret, the widow Of the deceased
Judgment debtor, obtained the as
signmcnt Of homestead in the pre-
misses III controversy on the 10Th ot
October, 1869. She died in 1872
The defendant. Agnes, the wife of j
). Carol, the minor child Of James
and Margaret loungc, is now in tho
enjoyment of the homestead.
In january, 1872, after the assign
mcnt of the homestead, the premise:
covered by the homestead exemption
was sold at shcrin"s sale, subject
to the right Of homestead, and pur
chased by the plaintiff, Tie allcge.
that defendants are committing vast,
by the destruction of the timber
and the answer does not deny sucl
waste.
| The judgment diS,niSsing the com
plnint appears to have been based upor
IL determination that the right acquirc<
under the ASST gnmcnt Of the home
stead and now held by the defendants
was III the nature Of 4 fee simple, ant
that accordingly waste could not BE-
alleged.
At the close Of the appellants ar
gumcnt, question appears to be dis
cusssed affecting the validity Of the
proceedings for the assignment of tn,
homestead, on the ground that sucl
an assignment was in violation Of tn,
rights secured hy the judgment, ant
tended to impair the obligation of tn,
contract enforced by such Judgment
This question cannot be made at tn,
present time. If the assignment o
the homestead was for any reason i,
violation Of plaintiffs rights, advan
tagc should have been taken of sucl
fact in direct proceeding; it canno
be considered collatcrally, as sough
by the plaintiff, in suit to stay waste
The plaintiffs case is placed by hin
upon purchase made subject to TIN
homestead right, and doubtless at
price based on the assumption of tn
validity Of the homestead claims, an,
accordingly he does not occupy posi-
ton enabling him to open the ques
) ton Of the validity Of the original as
siSnmcnt .3 ,
The first question that is proscntc
is whether tho plaintiff shows in him
self an estate or interest in the land
of such nature as to enttle him t,
restrain waste on the part of the dc
PENDANTS. His whole claim depend
upon the validity Of the shcrit's sal
under the Judgment. The defendant
! claim to hold the premises in the righ
| nE Ihn dnEnndant A nnns no IN nstn T.