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

Loan Association VS.. Enslow, in
which it was held that a party could
not claim q Homestead exemption as
against mortg ge:
SUPREME COUET-NovEMBER TERM
1875.
Homestead Building and Loan Associ;a-
ton, Us. j. Il. Ensloac, Respondent,
and G. b. L. Association, ct. a.
AppcNunt- Opinion Willard, a. H.
The defendant Enslow, the head of
n family, residing within this State,
mortgagcd in 1871 the premises on
which he resided with his family.
The premises appear to be such as
might he considered family Lome-
stead within the sense of the Consti-
tuition allowing exemption from Ger
tain process, rs against premises so
held and occupied. These premises
have been sold under II decree fore
closing such mortgage, and Il portion
OF the purchase money arising from
such sale is held under Il decree Of :hc
Circuit Court asccrtuining that the
defendant Enslow is entitled to the
same i'll right of his claim to home
stead exemption rs against his mort
gage Of said premises.
The appeal is from that decree, and
alledges that the homestead light can
not be asserted rs against the mort
gage made by Enslow.
There is no doubt but that Enslow
could make valid mortgage. A
homestead had never been actually
set apart.
Tie homestead provisions do not in
terms prevent the owner of lands from
mortgagin' them. Such an intent
cannot be enforced rs against the com
mon law right Of dominion unless it
is found TO he essential to the operation
of the honest cad provisions as it re-
gat'ls the specific object Of these pro
visions
All tlrat the Consultation seeks 10
accomplish is to prevent premises
:" :::.s"i al. o,,nI,;,;~@!. trnm being sub
jcctcd 10 process for the purpose oI
enforcing obligations qi Il certain
chalacte Art..2, Sec. 80. ~
It 81 s-don,iifiono otf the ow,her
Of an,ls, including the power to lien or
incun.l er, is not, either directly or
indirectly, lie subject Of this plo-
vision. The whole force of, the consti-
tuti"nal provision is expended in PIE
venting interfere zee in certain cases
with that provision.
II G Statutes, i'll pursuance Of This
clause Of the Constitution, do moi en-
large the nature or operation ofthc
homestead provision oflhc Consti,u.
ton. Whether the Legislature had
not the right to extend the measure Of
relief afforded to the heads Of talni-
lies by The section above cited, under
II mere general grant Of Legislative
authority conferred BY Sec. 20, 1st OF
the Constitution, need not be con
sidcrcd at This time, for no such cxcr-
else of authority beyond the terms Of
Sec. 80, Art. 2. has been attempted.
The Statutes (Gcn. Statutes 47D
merely provides specific means for
accomplishing that which constituted
the end and purpose Of the constitu.
tion rs contained in Sec. 50. Art. 2.
Had the mortsagce obtained
possession ofthe morlgagcd premises
otherwise than by proceedings for
their sale, either under authority con
tcrrcd by law or the contra of;h
parties, on the mortgage, no question
nndcr the Constitution affecting the
rightfulncss Of lhat posses: ion could
have arisen.
II remains then, only, TO consider
whether judicial sale for the fore.
closure Of the mortgagr is embraced
under this description attachment,
levy or sale oil any mesne or final
process issued from any court con
tanned in See. 80, Art. 9.
The portion of that section involved
IN tho present construction is rs
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, levy or sale
on any mesne or final process issued
from any Court"
1t is obvious that process issued to
enforce judgment or decree for the
payne Of money, and which may
be enforced against the whole estate
Of the judgment debtor is here intend
cd. 10 extend the sense of the Con-
stitution as demanded by the respond
cnt Enslow would be equivalent to
holding that no judgment nor order