The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1876-03-16
An Important Decision.

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preme Court of this State in the. case o.
the Homestead Building and Loan Asso.
citation VS.. Enslow, in which it was held
that party could not claim a Home.
stead exemption as against mortgage
SUPREME CoUnT-NovEa1BER TERM
1875.
Homestead Building and Loan Associa.
ton, VS.. ]. A. Enslow, Respondent, and
c. B. L. Association, ct. al, Appel
lants.-Opinion-Willard, A. j.
The defendant Enslow, the head of a
family, residing within this State, mort
gagged in 1871 the premises on which ne
resided with his family. The premises
appear to be such as might be considered
a family homestead within the sense of
the Constitution allowing exemption
from certain process, as against premises
so held and occupied. These premises
have been sold under decree forecloslnIg
SUCH mortgage, and portion of the
purchase money arising from such sale is
held under decree of the Circuit Court
ascertaining that the defendant Enslow
is entitled to the same in right of his
claim to homestead exemption as against
his mortgage of said premises.
The appeal is from that decree, and
alleges that the homestead right cannot
be asserted as against the mortgage made
by Enslow.
There is no doubt but that Enslow
could make valid mortgage. A home
stead had never been actually set apart.
The homestead provisions do not in
terms prevent the owner of lands from
mortgaging them. Such an intent can
not be enforced as against the common
law right of dominion unless it is found
to be essential to the operation of the
homestead provisions as it regards the
specific object of these provisions.
All that the Constitution seeks to. &C.
complish is to prevent premises so held
and occupied from being subjected to
process for the purposes of enforcing OBJ
legations of certain character. Art. 2,
Sec. 80.
The right of dominion of the owner
of lands, including the power to alien or
incumber is not, either directly or indi-
rectly, the subject of this provision. The
whole force of the constitutional provis-
ion is expended i'll preventing interfer-
ence in certain cases with that provision.
The Statutes, in pursuance of this
clause of the Constitution, do not enlarge
the nature or operation Of the homestead
provision of the Constitution. Whether
the Legislature had not the right to ex-
tend the measure of relief afforded to the
heads of families by the section above
cited, under mere general grant of Leg
islative authority conferred by Sec. 20,
Art. 1st of the Constitution need not be
considered at this time, for no such exer-
else of authority beyond the terms of Sec.
80, Art. 2, has been attempted.
The Statutes Gen. Statutes 474) mere
ly provides specific means for accomplish.
ing that which constituted the end and
purpose of the Constitution as contained
in Sec. 80, Art. 2.
Had the mortgagee obtained posses
sion of the mortgaged premises otherwise
than by proceedings for their sale. either
under authority conferred by law or the
contract of the parties, on the mortgage,
no question under the Constitution af-
fecting the rightfulncss of that possession
could have arisen.
It remains then, only, to consider
whether a judicial sale for the foreclosure
of the mortgage is embraced under this
description attachment, levy or sale on
any mesne or final process issued from
any court" contained in Sec. 80, Art. 2.
The portion of that section involved in
the present construction is as follows !:
"The family homestead of the head of
each family residing in this State, such
homestead consisting of dwelling house,
out buildings and lands appurtenant, not
to exceed the value of one thousand dol
lars, and yearly product thereof, shall be
exempt from attachment, levy or sale on
any mesne or final process issued from
any Court"
It is obvious that process issued to en-
force a judgment or decree for the pay
ment Of money, and which may be en-
forced against the whole estate OF the
Judgment debtor is here intended. To
extend the sense of the Constitution as
demanded by the respondent Enslow
would be equivalent to holding that no
Judgment nor order of any Court could
bind such homestead so as to disturb
the possession of the occupant. This is
manifestIy beyond the intention OF the
Constitution.
It is noticeable that the exemption
conferred by the Constitution is not lin
tied in terms to the head of a family
homestead by rightful title. Nor can
this be regarded as an intentional omls-
sion, if the object of the Constitution was
merely to shield the possession ofthe fam
ily homestead against creditors having
only general right to subject the lands
of their debtors to their judgments; for
as against judgment creditors at large
there is as much reason for protecting a
homestead held by a defective title as one
held by good title. But the whole sense
of the Constitution would have to be
changed, if we are to suppose that no
Judgment or order of any Court could be-
come the means of ousting the possession
of the head of the family, for that con-
struction would necessarily include a
Judgment recovered by one having good
title to the premises against one holding
under defective title.
If we attempt to meet this difficulty by
interpolating words in the Constitution,
confning the right of exemption to cases
where the person claiming such exemp-
ton holds by rightful title, then we dis,
turb the provisions and deprive them OF
their obvious fitness, as they stand, to
provide protection acknowledgement cred,
itors having no other ri ight to the land
than that arising from the operation of
process issued to enforce a money Judg-
ment or decree.
The view just presented is conformable
to what was said by this Court in Shelor
VS.. Mason r S. c. 23S.)
The sale for foreclosure was not forbid
den by the Constitution as it regards the
homestead in question and the mortgagor
has no right to claim any part of the pro,
ceeds of sale, by reason of the alleged