The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1884-08-28
THE STATE SUPREME COURT.
uoNEsTEAD-TEaMtSATIo THxREoF-EM8EZ.
ztyMENT BY oTFIcEa-RENEwAL OF. OBLr- :
GATIoN-PARTNEEsHIP ASSETS.
Chalmers, Administrator, Va Turnipssea, ex;;
ecutor.-No / $50.

The Circuit Judge decided that although the
orders under Which Mrs. Stewart obtained
thc. homestead were manite,tly erroneous, yet
having been allowed by tie Court and In wing
been paid out in the progr ess of the case Ii ON
which there was no appeal, and having re-
manned unqucstioned for more than six years
and until The death Of Mrs. Stewart the claim
was barred by the Statute. o.. .. ..4.:
The Supreme Court concurs in this jndg-
'mert, saving: Although tie Circuit Judge
trarsceni~d his jurisdiction aEd the allow
arce OF the homestead was illegal, yet the or.
dcrs having been passed by the consent Uf-all
parties interested in the matters then before
the Court, creditors and all and the property
turned over to- Mrs. Stewart and accepted and
enioyed during her life, all parties acquiescing,
IL IS too Ia te TO claim that the whole thing was
4 nullity and void. On the contrary, we must,
regard the proceeding as legal, so fur rs it ap-
plies to this case: that it gave Mrs, Stewart a.
homestead such GS the law provided for wild
ows and children, and the parties oa all sides
are estupped from taking any other position.
Hand vs. Savannah Railroad, i S. c., 3il. =.
The homestead having rminated by the
death Of Mr. Stewart, there teing n o children
surviving her the Inhibition f:om enforced
sale terminates, and the title or estate therein
Of the party not having hem in any way
changed or af :cted, 1t would be governed by
the laws OF descent. devisn distribution. dow
er and sale for pa, meRt Of debts, as applicable
70 sry other properly; and accordingly the
81 COO las corpus slouI, Belong to the estate
of Robert Stewart Oh the death Of his widow,
diselicumbered oil the homestead. Having
been set. apart. however, TO Mrs. Stewait as u
homestead she had the right to erjoy itas such,
and, therefore. tho annual interest or inct'nre
wes hers. Nor should her estate be held re.
sponsib!e for any diminution in the corpus
occasioued by The legitimate use thereof or any
loss or destruction not the result OF fault on
her part. - -.
The Acts Of 1873 end 1880 provide ihctwhen
the homestead isset or as the Act directs 10 the
head pfthe family It shall be forever discharg.
Ell from NIL debts Of the debtor then sxistfug
or thereafter TO te contracted But this pro.
vision was not In cospCrated in the Act Of 1872
What effect Il Will have on homesteads set of
under the Act now of force has not been con-
sidercd E..- a,.-t.. .,.g-.sr...g. .......-
The proceeding in this case. under which
The properly was sohl, was in the nature of O
creditors i'll, ahd proceeds were in the hands
Of the Court awaiting an order OF distribution.
While Ia This condition the amount applicable
to the Harris mortgage was embcZz' ed 10y The
sheriff who had collected the same, but Defo.c
cntlon. Under such slate OF facts n:rris chn-
not be held responsible on account ofnegli-
genee aEd. his mortgage credited with that
amount. Sec Sims ct al Ys. CsInpb II Of al,
Nee, ch. 81; 1NssiT, i.ook, ! Bail 20 TX :,
inferior or equal rank wiih tle'fo,d daot,
whether It shall be regarded "a payment or
renewal, 30 aquestion G? fact, depending upon
the inteutiou. OF ihe parties, lie burden OF
proof being upon 'ha debtor. Where a.iigher
Security is taken; 10 the absence 'ftestimopy
TO The contrary. the law will imply pay
rIent. Gardner IS. Hurst. Rich. l.. 8.
One creditor has no priority over another
10 tho assets OF their debtor, except in csses
OF intestscy, or where he he's secure, q len.
IN this case the debt OF G;lrelth did not occupy.
either OF these positions as 10 he assets OF tie
firn OF Stewart g. Coate. Although both or
the partners were dead as dividuals and 10.
nership was in:estate. II is by sFecial Get that
debts OF AL intestate are paid In a certain or.
der; but this act does not apply TO tie distrl.
button of the assets Ni diasolYcd or extinct
copsrtnefEhip. ..-.,.... ..,-
Judgment ee!ow modified. Opinion by
Simpson, CD ........ ...- p. 49,
Filed April II 1891.
MeSsss. Y. j. Pope, L. J. Jones. Moorman Sc
Simkins, for appellant. Messrs. George john
stone, Mower, suber ( Caldwell for rcspon.
dents ....... .... -.t-a.. ..-H. = = - -.