Lanham v. Glover

24 S.E. 49, 46 S.C. 65, 1896 S.C. LEXIS 36

• Court: Supreme Court of South Carolina
• Decided: March 9, 1896
• Status: Published

Opinions

The opinion of the court was delivered by

Mr. Justice Pope.

The defendant below has appealed to this court from the decree of Judge Benet herein, denying to him a homestead in the lands in question. The grounds of appeal will be reported. An examination of them will show that they but present different phases of the defendant’s claim to said homestead. In order to make plain our views of this contention, a statement, of the admitted facts out of which this question of homestead has arisen will be necessary. In the year 1875, the husband of Mrs. C. B. Glover died intestate. The administrator of the personal estate of such deceased husband filed his complaint in the court of probate for Edgefield County against Mrs. C. B. Glover and her children, as defendants, to procure the sale of intestate’s lands to aid the personalty of his estate in the payment of debts. Under the action of the court of probate, Mrs. C. F. Glover, on her claim of dower, had a tract of land, containing 342 acres, set apart to her as her estate of dower in the lands of her deceased husband. She and her children — of whom the appellant was one — had a homestead in the lands of the intestate set apart to them. This homestead they still possess and enjoy. Between the dates 1875 and 1885 Mrs. C. F. Glover contracted a debt which, in-1894, amounted to $871.15. Thereafter, in the year 1885, Mrs. C. F. Glover, for no consideration whatsoever, and in order to defeat, delay, and hinder her own creditors from recovering out of her property the payment of their honest claims against her, conveyed her dower lands, containing 342 acres, to one T. M. Glover; and in 1891 this T. M. Glover, at the instance of Mrs. C. F. Glover, for no consideration, and in order to defeat, hinder, and delay the creditors of the said Mrs. C. F. Glover from collecting their just demands owing by her, conveyed this same tract of land to her son, J. M. W'. Glover, and this J. M. W. Glover well knew of all these plans. In 1894 the plaintiff, J. C. Banham, recovered his judgment against Mrs. C. F. Glover, on a debt to him contracted by her between the years 1875 and 1885, for the sum of $871.15. The sheriff of Edgefield made a return of nulla bona on the execution under this judgment, then levied upon, and sold all her estate in the tract of 342 acres of land, and at this sale the plaintiff became the purchaser and received the deed of said lands from said sheriff. Immediately afterwards he brought his 'Suit against the said J. M. W. Glover to recover said lands — for damages in their retention — and also sought for a cancellation of the deed from Mrs. C. F. Glover to T. M. Glover, as well as that of T. M. Glover to J. M. W. Glover, on the ground of legal fraud. It may be stated that the complaint in the main recited the foregoing facts as the basis for the relief sought by the plaintiff. The defendant, J. M. W. Glover, in his answer, made a denial of the facts, and claimed, at any rate, no matter what the facts might be, that he was entitled to have set apart to him the homestead of Mrs. C. F. Glover in said tract of land. The action came on for trial before his honor, Judge Benet, and a jury, but the Circuit Judge withdrew the question of homestead from the jury. To this conduct of the Circuit Judge no objection was made by the defendant. The jury found for the plaintiff the land in dispute.

Immediately thereafter the Circuit Judge heard the question as to this claim of homestead, and after a careful consideration thereof, he decided that Mrs. C. F. Glover never had any right of homestead in this tract of laud, and of course, therefore, this defendant could lay no claim to a right in this land that his grantor, Mrs. C. F. Glover, never possessed. The ground upon which the Circuit Judge bottomed this conclusion was: that Mrs. C. F. Glover already had a homestead set apart to her, in which she was then in the full enjoyment, to wit: that set apart to her out of her deceased husband’s lands, in the year 1875, and that to allow her a right of homestead in her own lands, would be to acknowledge that the same person could have and enjoy two homesteads at one and the same time. We concur in this conclusion of the Circuit Judge. Briefly stated, these are the grounds for concurrence. Our State Constitution, and laws to effectuate the same, have declared: “* * * as will exempt from attachment and sale under any mesne or final process issued from any court, to the head of any family residing in this State, a homestead in lands, whether held in fee or any lesser estate, not to exceed in value $1,000. * * *” It seems to us that, under this provision of our organic law, a homestead not to exceed in value $1,000, is contemplated, and when this has been set apart, and is in existence at the time another or second homestead is sought to be carried out, there is no longer any constitutional warrant for such second homestead. Reference has been made to Martin v. Bowie, 37 S. C., 118, as authority for a contrary doctrine in our decision, but an examination of that case will show that such a claim is unfounded. In Martin v. Bowie, supra, all that this court held was, that if a right of homestead existed in one D. S. Branyon at the time the sheriff sold a tract of land worth more than $1,000, that a purchaser at such sale did not take, under his sheriff’s deed, Branyon’s homestead, although such homestead had never been formally set apart to Branyon, upon the ground that there did not exist in the law any right in the sheriff to levy upon and sell the homestead of Branyon, and hence his deed could not convey such homestead. Of course, it is manifest that this decision was based upon the fact that a right of Branyon to a homestead in the tract of land sold by the sheriff was a fact. In the case at bar, the right to a homestead in Mrs. C. F. Glover in the 342 acre tract of land could not and did not exist, because she already'has set apart to her a homestead, and this homestead so set apart in 1875 she was then enjoying. The Constitution of this State and the laws of this State carrying the Constitution into effect as to the homestead, are the only basis for the claim of homestead. When, therefore, a homestead under the same has been set apart, and is then being enjoyed, there can be no second homestead.

It must be observed, that no question has been raised by the appellant as to the right of the Circuit Judge to withdraw the matter of homestead from the jury, nor is there any objection to the verdict of the jury. We must take the case as we find it, and consider the objections to the judgment of the Circuit Court as they appear in the record. It follows, therefore, that there was no error here.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed. >