The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1886-04-14
Opinion By MeIver, A. J.


went into possession of a lot of land contain
ing twenty acres more or less. known as west
field lot. The purchase money not having
been paid the administrator of Perrin, who in
the meantime had died, on the 29lh of July |
1878, commenced an action against kuIZ to
enforce compliance with the terms of said
contract or for q sale OF the premises, and on
the 18th OF September 1873 obtained judgment
for the amount due on the purchase money
and that "the premises described in tic
Complaint as hereinafter set forth, or so much
thereof as may be sufficient to raise the
amount reported to be due to the plaintiff for
principal. interest and cost to be sol d with due
regard To The interests of the parties con-
cerned" No steps appear to have been taken
ably that payments were made from time to
time thereon, leaving a balance due thereon
of eight hundred dollars, on the 18th of March
1882 when the said IG1sme1nt r was asslgncd TO
3lst of January 1885, Jacob Kurz died intes-
tate, leaving a widow. the appellant herein,
and an infant son living with her, in the
dwelling house on said lot of land. On the
End of March 1855, the widow filed her petl-
tlon before the Master praying that q home
stead be assigned to her out of said lot, as
well as the exemption provided ny law OUT OF
the personal property of which intestate dled
POSSESSED. On the same day the Master pub
iished the usual notice to creditors and 9TH
crs interested of this application for home
stead, and on the 18th OF March 1889, ". II.
Parker and w. c. MCGOWAN flied with the
Master notice OF the Judgment which had
been assigned to them as above stated, in
which they "insist that homestead IN the
said real estate be not set Off to c. Il. kurZ,
petitioner absolutely but subject to the tights,
under The decree in the above stated cause, Of
the undersigned creditors, in the event that
there be not sufficient proceeds from said
property, outside OF the homestead, TO pay
the balance of said decree and COSTS On the
4th Of April 1885, the Master granted an or
der appointing appraisers to lay or thc nome,
stead subject to the rights Of said Parker and
~ f,,(t inh
recites that no objection to the same was nled
in his office, except the notice Of Parker ana
MCGOWAN above referred to-. On the 4th OF
April lsS1, the Appraisers MADE tnet t rS,nra, Wi
field lot as her homestead, the dwelling
house in which she resides and in which ia
cob ILun resided at his death together with
the lard on which it stood, and adjoincd, sup
posed to contain not exceeding one and one
half acres, de$cribn! the same by metcs ana
bounds. and also set OFT to her persona! prop
On the 10th OF April l>Si, exceptions to the
assignment of the homestead proper were fled
by two Judgment creditors of the lDtestatc,
Jacob KurZ, one of the judgments have been
entered on the 9Th of September 1875, ana the
other on the 9th OF June 1879, substantially
upOn the grounds: l>t That the petitioner
is not entitled to homestead in tie premises
2nd That if she is, the same Is first Liable TO
the Judgment OF Parker ana MCGOWAN, De-
iure any portion Of the land outside OF that
assigned TO her as homestead can be applied
to said Judgment. On the 18th of April 1888,
the administrator Of Jacob l\urZ filed n crcu'
itOrs hill to which the willow ana her III
nt'son as well as the JUDGMENT and other
creditors Of jacob kurZ are parties, in which,
amongst other things. the administrator
asked that all Of the real estate of said kurz
except that assigned TO the widow as home
stead be sold to pay debts in aid of the person.
atty, and an order Of sale was granted rs
prayed for: and it is admitted that since the
of homestead, all Of the real estate, except
that norton assigned to the widow as her
homestead, has been sod by the Master, ui!-
der said order, for amount more than Sn1tl-
cient to pay the balance due on the Judgment
he'd by Parker and Mc(iO~an.
The case WAS heard Dy Judge COthran, who
rendered Il decree, holding that the genera
creditors had an equity to force The holders nl
the judgment for The unpaid purchase money
first to exhaust the homestead before they
could go upon the land outside Of 1t, and
that the objection. urged hy the rctlt!nncF,
that tic creditors should have filed their eX.
ccpti"nS before the master to the Issuing OF
the order appointing appraisers, TO lay OIL the
homestead, and this not having been done
the Circuit Court had no jurisdiction except
sustained. lie therefore rendered judgment
confirming the return of the appraisers SO far
as the exemption OF personal property was
concerned, no objection having been maue
thereto, but set aside So much us assigned Inc
homestead in the real estate, and dismissed
the petition with costs.
From THIS Judgement the petitioner ap-
pcalrd upon the several grounds set ont III
the "l'aSr," which however, ncctl not bC SCI
ont here, us they make substantially but four
questions. lst rs to the jurisdiction or the
/ ircuit Court to determine the right to home
stead in the absence of any exceptions before
lie Master within the period designated for
publication Of the notice of the applications
md Whether the petitioner. is emitted 10
homestead in the premises in question: its
against the general creditors. Bro Whether
tic genera! creditors can compel the ho!ucrS
of the judgment for the unpaid pHrchaSc
money lrSt 10 CXlIau-t The homestead. lth
Whether there WAS error IN GiSllllSslhS Tile
petition with co: t.,
As to the first question raise l Ivy the appeal
we agree with the Circuit Judge. The Act,
General Statutes 2DCl!, does not provide for or
require the filing OF amy exceptions III! AZ
ter the return OF the appraisers appointed TO
lay OH the homestead, and the exceptions
having been filed in due time Ntter such re-
turn WAS uade. We see no reason why he tlr-
cult Court could not proceed u auJudge the
questions raised by the exceptions.
AS to The second question:; we think 1t is
determined by the recent decisions OF this
Court in the case OF Monroe vS. lctcr, filed 80
November 1SS5. While I; homestead, in Il case
like tins, cannot bc claimed in land held un-
der :: contract to purchase until the purchase
money has been fully repaid, yet after it has
been paid, there is no obstacle IN Tue way Oh
such claim, even though the Judgment debtor
may not have acquired formal legal title.
As TO the third question, we cannot agree
with the Circuit Judge, in MS application TO
this case OF the well settled principle that
where There are two creditors Of u common
debtor, one uf whom has access TO only one,
the alter has IN equity to require the former
first to cNhduSt the fund which Is not COM
mon TO both of them." On the contrary We
do not think this was case OF two lllnls or
sources of payment. Laying out OF view the
personal property as to which there IS no
Question in this case, there WAS but one luna
or source Of paymrnt-thc WcStlicld lotto
no part of which could the general creditors
resort lr payment Of their claims, nh'1l IA az
ter til" purchase money was fnlly pald. lhcy
to the payment Of their debts by amy pro-
&C eding, until The Judgment for the purchase
money WAS fully satisfied, for until thcn, II
could hot be known with any certainty
whether the whole, or u part only, would be
necessary for that purpose 1T was an unIl-
vidcd lot, and by the very terms of the judy.
ncnt for the purchase money, 9niy SO niuGm
thereof was directed to be sold, "aS may be
sufficient 10 raise tI,e amount reported 10 bc
due to the plaintiff for principal, interest
and costs with due regard to the IN
ter words were doubtless inserted tor the eH-
press purpose Of preserving the dwelling
house for the family Of the debtor. Inc gen
cra creditors having no lien upon this lot,
and no means Of subjccting it to tho pay
mcut Of their debts, unl il alter the purchase
money, was paid and the Judgment lor Tie
purchase. money, containing, IN cl!;ct ,he
i lot "'Its''' outside cf wi What might be claim"d
rs a homestead should DC first Sid,
we do not see how it can he said thai
this was Il case wl",r there were two lull:!S
or sources of payment. To both OF which lhr
purchase money creditors could resort for
i,aymrnt Of their debts, whil" the .cnc'al
creditors cnuiG only resort to one. for cNc! as
suInin:s for ,iic sake If argument, that there
ware two funds. tHr general crrtitnrs, ls ""
have SEEM .;.l!l r"'nrt to neither unl!l th'
DuIrl;;,Sr iIuil,.N credit orS were raiiSfird ana
were u!,i ni tii@ Way, in wiiici event ON" "i
a., I;t ,,t n
c!,it Iut!Gr wrul,l cab>rnt, ANA the rule could
mn i,. .tpt l irn