The gold leaf. [volume] (Henderson, N.C.) 1881-1911, 1897-07-22
MUTUAL FIRE INSURANCE.
South Carolina s Supreme Court Holds
That Even a Members Homestead
is Forfeited for Assessments.
(2j South Eastern Reporter, 2ll.)

(2J South Eastern Reporter. 2ll.)
Farmers Mutual Insurance Associa-
ton VS.. Burch, Supreme Court OF South
Carolina, August 10, 1896.
The sole question in this case is whether
the plaintiff association, by it's charter
and the contract OF Insurance with the
defendant, member has lien on
property insured for the members pOr-
ton of the associations losses and
| expenses, which will prevent the deien-
dant IRON claiming Il homestead therein
against such claim. This action was
commenced January l, 1896, to enforce
an alleged lien for $3.50 against certain
real and personal property OF the defen-
dant, to pay his pro rata portion OF the
losses and expenses OF the plaintiff
| corporation. ON the former appeal in
| this case, the Judgment OF the Circuit
Court was reversed (21 ). +. JO:}) on the
ground solely that the alleged contract
Of insurance, according to the record
| before this court, antedatrd the act
| incorporating the plaintiff. This court,
| while reversing the Judgment below on
this point, surmislng that there WAS
some error in the pleadings below. gave
| leave to apply fOramendment. In justice
| to Judge buchanan, who heard the case,
it should be said that the point upon
| which the case was reversed WAS not
called to his attention or passed on by
| him. The p!eadngs having been amended,
| the case was again submitted to Judge
| buchanan, who held that the charter of
| the plaintiff and the agreement OF lnsur
ance create u lien on improperly insured
| and the real property upon which the
same is situated, and that the claim OF
| homestead cannot prevail against this
| lien or its enforcement, and accordingly
decreed for sale of the property, or so
much as may be necessary to pay the
claim, etc The case was heard upon the
facts stated in the complaint and answer,
which, with the exhibit, the decree and
the report of his honor, and the eXcep-
tons, will be found in the report OF this
case. The exceptions raise practically
| the one question stated at the beginning
| OF this opinion.
We hold with the Circuit Court on this
question. The plaintiff is IL mutual
Insurance association, chartered by the
! Legislature of this State, December Is,
| 1894, with power to ''mutuaily insure
the respective dwelling houses, barns
and other buildings of its members OF
Florence county against loss by fire,
wind or lightning, upon such terms and
under such conditions as may be fixed
| by the bylaws of said corporations
Section / of the act of incorporation
incorrectly set out in the complaint, is
as follows: "That every member OF said
corporation shall be- and is hereby,
| bound to pay his, her or their portion OF
| all losses and expenses accrulng to SAID
corporation; and all buildings and other
pro perty insured by and with this
corporation, together with the right,
title and interest of the assured OF the
lands on which such buildings or other
property may stand, shall be pledged to
the said corporation; and the said cor
poration shall have lien thereon
against the insured, his or her heirs,
representatives and ass gnees, during the
| continuance of their Insurance, as to all
| debts and liabilities contracted or
| incurred by said corporation subsequent
to the passage Of this act" When, there
| fore, Il person becomes q member OF this
association, and enters into the contract
of insurance. he voluntarily 81 yes to the
corporation lien upon the dwelling
houses, barns and outbuildings insured,
| together with the right, title andinterest
! of the insured to the lands on which
such buildings stand. We are not to be
understood as ruling that this associa-
| ton has power to insure, and, by It's
charter, acquire therefor a lien upon
personal property. This question is not
before us. Indeed, in the third exception
of appellant it is claimed that the charter
and contract create lien, if any, on the
personal property only. While the first
exception might be strained to cover
| this question, the question was not made
before the Circuit Court, nor argued in
this court; hence we assume it is not
intended to be made.
The question is to be determined by
the Constitution of 1868, in force when
| the contract i'll question was made.
Under that Constitution, it has been
often adjudged that the homestead is
| not an estate, but n mere exemption
| from attachment and sale under any
mesne or final process issued from any
court. The title and dominion over the
property remaining with the owner, he
could ALLEVIATE or incumber it as he saw
fit, consistently with the constitu tional
or statutory enactment creating the
homestead. The Constitution of 1868
placed no limitation on this power But
it is provided in Section 21HO, Rev. St,
that "nO waiver of the right of home
stead, however solemn, made by the
head of a family at any time prior to the
assignment of the homestead, shall
defeat the homestead provided for in
this chapter; provided, however, that no
right of homestead shall exist or be
allowed in any property real Or personal,
alened or mortgaged, either before or
after assignment, by any person what
soever, as against the title or claim OF
the alenee or mOrtgagee, or his, her or
their heirs or assigns 1t has been held
that this act limits the modes OF defeat.
ing homestead to those named therein
alienation or mortgage OF the property.
DendrlX VS.. SeabOrn, % $. G., 4S0. The
mortgage, however, need not be in form
Il legal mortgage; an equitable mortgage
may defeat the homestead allowed by
the Constitution and act under consid
Grafton. Besides the "pedge" of the
property insured-the Glen thereon
which is "a tie that binds property to a
debt or claim for its satisfaction''-is, in
this case given by the statute upon the
assent OF the owner by his becoming a
member OF the association, and entering
into the contract of insurance, designat-
ing the property insured and subject tC
the lien. The express purpose OF the act
OF incorporation was to give q lien or
the very property usually included and
claimed under homestead exemption
"the dwelling house." etc The lieI
created by the statute and contract
pursuant thereto is a mortgage in the
sense OF Section 213O. quoted above
1t Is a voluntary pledge or dedication OF
specific property as Il security for the
satisfaction OF an obligation.
We reach this result with all the more
satisfaction because the legislation and
contract IN question are not hostile tC
the preservation OF homesteads, but, or
the contrary, are directly designed to
afford owners of homesteads at small
expense mutual protection against tn,
destruction OF their homes The ju,lg
ment OF the Circuit Court is confirmed.
/ Pant goods cheaper than ever at
II. THOMASON'S.