Elder v. McIntosh

70 S.E. 807, 88 S.C. 286, 1911 S.C. LEXIS 126

• Court: Supreme Court of South Carolina
• Decided: April 1, 1911
• Docket: 7846
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Hydrick.

The facts out of which this appeal arises are fully stated in the opinion of the Circuit Court. The sole question is whether an alienee of the husband can claim homestead in the land aliened against a judgment in favor of alienor’s widow for a sum of money assessed in lieu of her dower in the land.

The provision of the Constitution exempting to the head of any family a homestead in lands was not intended, nor can it be construed, to shield the homestead against a right, title or encumbrance which is paramount to the right of homestead. When the right of dower attaches to land, it is paramount to the right of any other person claiming the land, or any interest therein under the husband by any subsequent act of his. Tibbetts v. Langley Mfg. Co., 12 S. C. 465; Shell v. Duncan, 31 S. C. 566, 10 S. E. 330. It was unnecessary to rest the circuit decision, to any extent, upon the ground that the value of the dower estate may be said to be pro tanto the purchase money of the land, SO' as to bring the case within the exception in the 'Constitution of obligations contracted for the purchase money of the homestead. In other respects, the opinion of the Circuit Court, as reported, is satisfactory, and for the reasons therein stated, the judgment is affirmed.