Howze v. Howze , 1870 S.C. LEXIS 24 ( 1870 )

The opinion of the Court vras delivered by

Willabd, A. J:

This is an appeal from an order allowing a homestead exemption to Samuel C. Howze, infant son of William Howze, deceased. The bill was filed by the administrator of the estate of Wrn. Howze, making the distributees and creditors partners, and asked, among other things, that the real estate of his intestate might be sold to pay the debts of the estate. S. C. Plowze answered by guardian, claiming a homestead out of certain lands of which his father died seized. The allegations of the answer bearing upon the question of homestead are to the effect that the father of such infant defendant was seized and possessed of the'land out of which the homestead is claimed, and resided there at the time of his death. That, as defendant is advised, S. C. Howze, being a minor, is entitled therein to the benefit of the Act of the General Assembly to determine and perpetuate the homestead, and lie submits that such homestead should be laid off out of said tract of land, and assigned to “respondent and whosoever may be entitled thereto,” and that the remainder of the tract may be sold to pay the debts of the estate.

No testimony appears to have been taken in support of the aver-ments of this answer, but an order was made appointing Commissioners to “admeasure and lay off to Samuel Capers Howze a homestead in the tract of laud described in complainant’s bill as the Home Plantation, containing two hundred acres, more or less, and whereon William Howze, deceased, resided at the time of his death, and that they do make their return to this Court.”

The first ground of appeal involves the question of thejconsti-tutionality of the homestead regulations in their bearing on antecedent debts. We have already decided this question adversely to the appellant’s view in the case of Kennedy (ante, p. 216.)

The second ground of appeal is based upon the idea that homestead exemption cannot be claimed in behalf of the family of a deceased debtor, except in the ease provided in the fourth Section of the Act to determine and perpetuate the homestead, passed September 9,1868.

This is a misapprehension. The Constitution itself (Sec: 32, Art. II,) establishes the right in all cases falling within its terms, leaving to the Legislature the duty of enforcing its provisions by suitable legislation. The purport of Section 4 is to provide for the continuance of the right in the family of one possessed of such right at the time of his death. In the present ease, the ancestor died in 1865, previous to the adoption of the homestead regulations, and as he was not at his decease possessed of such homestead right, the provisions of the fourth Section have no direct application to such case.

As we have already held, in the case of Kennedy, if there was a family anda family homestead existing at the adoption of the Constitution, that instrument immediately acted upon such family, ■ through its proper head,byway of conferring the right of exemption.

The 3rd, 4th and 5th grounds of appeal are likewise based upon the ideá that the homestead exemption can only be claimed under the terms of the Act and through the modes'of proceeding there pointed out.

It is only necessary to say, that when no special mode of proceeding is pointed out by the Act, the Circuit Court is competent, through its general jurisdiction, to afford relief. The Act (Sections 1st and 2d,) provides a mode of proceeding in the case of process affecting the property of the debtor at large. Section 5 confers jurisdiction on the Probate Court in cases arising under Section 4. The present case does not fall within the provisions of either Sections 1, 2 or 5, and therefore the 3d, 4th and 5th grounds of appeal are inapplicable to the case.

There is, however, a difficulty in the way of affirming"the order, arising from the fact that it does not appear to have been established that the premises have been held by a family as a family homestead at any time since the provisions of "the Constitution have become operative. Nor does it appear that S. C. Howze is the head of any family, so as to authorize the homestead to be laid out to him directly and in name. Assuming that any member of the family has a right to demand, for the benefit of the family, the exemption, still the order for its assignment should conform to the Constitution and the Act, by allowing or establishing such exemption through the head of the family for the time being.

It will be necessary to reverse the order appealed from, and to send the case to the Circuit Court for further proceedings.

It is ordered, adjudged and decreed, that the order in the above entitled cause appealed from be reversed and annulled, and that the cause be remanded to the Circuit Court, with liberty to the par- ■ ties to offer such proofs touching the claim of right to a homestead exemption, made by the infant defendant, S. C. Howze, as they may be advised, and for a hearing and final order upon the pleadings and such- proofs as may be offered thereunder.

Moses, C. J., and Wright, A. J., concurred.