Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1876-03-23
DECISION ON THE HOMESTEAD LAW

and the same are hereby, repealed.
DECISION ON THE HOMESTEAD Law.
THE LIEN OF MORTGAGE NOT DESTROYED
'm BY THE RIGHT OF HoMEsTEAD. t2t'
rRepored for the Charleston News and Courier] ''
COLUMBIA, March 3.-The following de-
cision of the Supreme Court in the matter Of
the Homestead Building and Losn Associa-
ton vs. j. A. Enslow, respondent, and CB.
L. Association ct al, appellants, was filed
February 10th, 1875. Opinion BY Willard,
AL: s,ra1 u ~" t,.f' go"
The defendant Enslow, the head of fam
ily, residing within this. State, mortgaged, in
1871, the premises on which he resided with
his family. The premises appear to be such
as might be considered family homeat.ad
within the sense of the constitation allowing
exemption from Leortam process as against
premises 80 held and occupied. These prem
inses have been sold under decree fore
closing such mortgage, and portion Of the,
purchase money arising from such sale, is held
under decree of the Circuit Court, assert
ing that the defendant, Enslow, is entitled TO-
the same in right of his claim to homestead
exemption as against his mortgage Of SO:
premises. 'l@o st',tr pt$tia4 .ASsy3,,i
The appeal is from that decree, and alleges
that the homestead right cannot be asserted
as against the mortgage made by Enslow. =. I.
There is no doubt but that Enslow could
make valid mortgage. A homestead had
never been actually set apart. The home
stead provisions do not in terms prevent the
owner of lands from mortgaging them. Such
an intent cannot 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
effect of those provisions. All that the con-
stitution seeks to accomplish is to prevent
premises 80 held and occupied from being sub
jected to process for the purpose Of enforcing
Obligations Of certain character. Article 2,
Section 32) The righs of dominion Of the
owner of lands, including the power to alien
or cucumber, is not either directly or indirect
ly the subject of this provision. The whole
force of the constitutional provision is expen-
ded in preventing interference in certain
cases with that dominion. 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
extend the measure Of relief afforded to the
heads of families by the section above cited
under more general grant of legislative au-
thority conferred by section 20, article 1st of
the constitution, need not be considered at
this time, for no such exercise Of authority
beyond the terms of section 80, article 2, has
been attempted. The statutes General Stat,
utes 474) merely provide specific means for
accomplishing that which constituted the end
and purpose of the constitution as contained
in section 80, article 2. .,Had the mortgage
obtained possession of the mortgaged premi-
ses otherwise than by proceedings for their
sale, either under authority conferred by law,
or the contract of the parties, on the mort
gagee, no question under the constitution at.
fecting the rightfulness of that provision could
have arisen. .. ..aas
Itremains then only to consider whether q
judicial sale for the foreclosure Of the mort
gage is embraced under the description, "at-
tachment, levy or sale on any mesne or final
process issued from any court" contained in
section 80, article g., o,8 /, tda5rr ai.g,gs
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 con.
sisting Of dwelling house, outbuildings and
lands appurtenant, not to exceed the value OF
one thousand dollars, 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 enforce judgement or de-
cree for the payment> Of money, and which
may be enforced against the whole estate of
the judgment debtor, is here intended. To
extend the sense of the constitution, as de-
manded by the respondent, Enslow, would be
equivalent to holding that no judgment nor
order of any court could bind such a home
stead so as to disturb the possession of the oc-.
cupant. This is manifestly beyond the inten-,
ton of the constitution. alv, 81, y
1t is noticeable that the exemption confer
red by the constitution is not limited in terms
to the head of family holding premises oc-
cupied as family homestead by rightful title.
Nor can this be regarded as an unintentional
omission, if the object of the constitution was
merely to shield the possession Of the family
homestead against creditors having only a
general right to subject the lands of their
debtors to their judg dgments; for as against
Judgment creditors at large there is as much
reason for protecting 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 construction
would necessarily include judgment recov-
cred by one having good title to the premises
against one having defective title. If we at.
tempt to meet this difficulty by interpolsh6G;
words in the constitution, conining the night
ofexemption to cases where the persoR Slei9s
ngsuch exemption holds by rightful tita kan
we disturb the provisions and depriys fkAmo
thsif o6ssiissss fitness, as they stand, to pfo..
vide protection against against judgment creditors
having no other right to the land than that
arising from the operation Of process Issued
to enforce money judgment Or decree. !.
The view just presented is conformable to
what was said BY the court in Shelve Vs. Ma
son. @ S. @. 233. 4,s,g lIl.s. q /
The sale for foreclosure was not forbidden
BY the constitution as it regards the homestead
in, question, and the mortgagor has, no right
F to claim any part Of the proceeds of sale by
reason Of the alleged occupation Of the mort
gagged premises as a family homestead.
The Judgment below must be modified &C.
cordingly. Moses and Wright concur.