Orangeburg news and times. [volume] (Orangeburg, S.C.) 1875-1877, 1876-04-01
An Important Decision.

Loan Association vs.. Enslow, III
which it was held that a party could
not clnim Homestead exemption as
against Il mortg ge:
SUPREME coUKr-NovEMBE TERM
1875.
Homestead Building and Loan Associa-
ton, Us. j. n. Ensloac, Respondent,
and c. B. Il. Association, ct. al.
1ppchunt- Opinion Wizard, a. a.
The defendant Enslow, the head of
n family, residing within this State,
mortgagcd iii 1871 the premises On
which he resided with his family.
The premises appear to be such as
might he considered u family kome-
stead within the sense of the Consti-
tuition allowing exemption from GER
tain process, us against premises so
held and occupied. These premises
have been sold under decree fore
closing such mortgage, and Il portion
Of the purchase money arising from
such sale is held under decree Of The
Circuit Court asccrtainipg that the
defendant Enslow is entitled to the
same i'll right of his claim to home
stead exemption as against his mort
gage Of said premises.
The appeal is from that decree, and
alledges that the homestead rig hit can
not be asserted rs against the mort
gage made by Enslow
There is no doubt but that Enslow
could make n valid mortgage. A
homestead had never been actually
set apart.
The homestead provisions do not in
terms prevent the owner Of lands from
mortgagin, them. Such an intent
cannot be enforced as against the com !
mon law right Of dominion unless it
is found 10 he ESSENTIAL to the operation
of the homestead provisions as it re-
CARDS the specific object Of these pro
visions.
All tlat the Consultation seeks to
accomplish is to prevent premises
50 "...'i ..na o,,ur!i.>,ti. tr"m l,ring sub
jected 10 process for the purpose oI
enforcing obligations qt Il certain
chaiacter. Art. q, See. 80. .fi
= doniiltiou If the 6Wler
of an,ls, including the power to lien or
incun,l cr, is not, either directly or
indirectly, lie subject Of this pro
vision. The whole force Of the consti-
tuli"nal provision is expended in PIE
venting Interfere zee in certain cases
with Hat rr"vision.
III G Statutes, in pursuance Of This
clause OF the Constitution, do not en-
large the nature or operation ofthc
homestead provision ofthc Constitu.
ton. Whether the Legislature had
not the right to extend the measure of
relief afforded to the heads of taIni-
lies by The section abovc cited, under
Il mere general grant of Legislative
authority conferred BY Sec. 20, lst Of
the Constitution, need not be con
siderc'l III this time, for no such cxcr-
else Of authority beyond the terms Of
Sec. 81, Art. 2, has bccn attempted.
The Statutes (Gcn. Statutes I74)
merely provides specific means for
accomplishing that which constituted
the end and purpose Of the constitu-
ton as contained in Sec. 50. Art ..
Had the mortgage obtained
possession ofthc mortgagcd premises
otherwise than by proceedings for
their sale, either under authority con
irrrcd by law or the contract of;h
parties, on the mortgage, no question
under the Constitution affecting Tie
riShtiulncss Of that posses. ion could
have arisen.
II remains then, only, to consider
whether judicial sale Tor the fore
closure Of the mortgage is embraced
under this description attachment,
levy or sale OH any mesne or final
process issued from any court" con
taincd in See. 80, Art. 9.
The portion of that section involved
in the present construction is ns
follows: "The family homestead Of
the head Of each family residing in
this State, such homestead consisting
Of dwelling house, out buildings and
lands appurtcnant, not to exceed the
value Of one thousand dollars, and
yearly product thereof Shall lie
exempt from attachment, lew or sale
OH any mesne or final process issued
from any Court
1t is obvious that process issued to
enforce Il Judgment Or decree for the
pnymc Of money, and which may
be enforced against the whole estate
Of hcjudgmcnt debtor is here intcnd-
cd. 10 extend the sense of the Con-
sGtution rs demanded by the respond
cnt IInslow would be equivalent to
holding that no judgment nor order