Carolina Savings Bank v. Evans , 28 S.C. 521 ( 1888 )

The opinion of the court was delivered by

Mr. Justice McIver.

The main question involved in this appeal is whether the return of two out of the three appraisers appointed, under section 1994 of General Statutes, to set off the homestead of defendant, Evans, is legal and valid. All of the appraisers acted together and two of them united in the return, while the third made a separate return, concurring with the other two as to the personal property, but dissenting from their judgment in relation to the real estate.

At common law the general rule was thus stated by Eyre, C. J., in Grindley v. Barker, 1 Bos. & Pul., at page 236: “Where a number of persons are entrusted with powers, not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.” This rule has been adopted in some of the States of the Union, and where it has, the test resorted to for the purpose of determining whether the act of a majority will be valid seems to be whether the act to be done was of a public or private nature — whether it affected the public generally, or only private individuals. See People v. Nichols, 52 N. Y., 478, reported also in 11 Am. Rep.,. 734, and also Bank v. Mount Tabor, 52 Vt., 87, reported in 36. Am. Rep , 734, where the authorities are elaborately reviewed. In that case Shaw, C. J., is quoted as having laid down the rule, in Williams v. School District (21 Pick., 75; 32 A. D., 243), in the following language: “Where a body or board of officers is constituted by law to perform a trust for the public, or to execute á power or perform a duty prescribed by law, it is not necessary, that all should concur in the act done. The act of the majority, is the act of the body.” From this language it would seem that this eminent judge did not regard the rule as confined to the case where the act to be done was of a public nature, but that it. should be extended so as to cover a case where the appointment-was made by public authority; for he says that, where the appointment is “to perform a trust for the public, or to execute a power or perform a duty prescribed by law," the act of the majority would be sufficient. Now, if the rule be so extended, it would cover this case, for here the appraisers were appointed to perform a duty prescribed by law, by the order of the court.

But whether the common law rule can be so extended or not is a matter of no practical importance, for in this State the rule itself has been expressly repudiated, and the civil law rule recognized, as will be seen by reference to the cases of Leatherwood v. Woodroof, 2 Brev., 380; Lockart v. Kidd, 2 Mill Con. R., 217 ; Black ads. Pearson, 1 McCord, 137 ; and Parnell v. Parnell, 3 Strob., 486, by which it was settled that an award by a majority of arbitrators was valid, whether the submission was under a rule or order of the court, or by the agreement of the parties. These cases are in direct conflict with.-the decisions in-those States which have adopted the English rule, as will be seen by reference to the cases hereinbefore cited from the American’ 'Reports, and more especially by reference to the case of Green v. Miller (6 Johns., 3; 5 A. D., 184), where it was held that, where there was a parol submission to five persons, all of them must join in the award, and this decision was placed expressly upon the English rule, the court considering that the “submission-to arbitrators is a delegation of power, for a mere private purpose.”

Now, when we find that the courts of this State, at a very early period in its judicial history, departed from the English rule, and in the language of O’Neall, J., in Parnell v. Parnell, supra; “adopted the rule of the civil law, and of reason,” and have ever since adhered to that rule, it would seem that we are bound to apply the same rule to this ease, which is analogous to a case of arbitration.' Indeed, there seems to be greater reason for applying it in this particular case, for in some of the cases above cited the civil law rule was applied even where the submission to arbitration was by a mere private agreement between the parties, and the arbitrators were not appointed by any order of the court; while here, by reason of the setting aside of the return of the appraisers first appointed, the appraisers whose action is here brought in question were "appointed by the court," under the express provision of the act — section 1994 of General Statutes. It would seem, therefore, that whatever may be the rule elsewhere, in this State the return of a majority of the appraisers appointed to lay off the homestead is valid ; especially in a case like the present where the appraisers were appointed, not by the parties, but by the court, to perform a duty prescribed by law.

The construction contended for by the appellant would lead to consequences which were certainly never intended by the legislature, and might practically defeat the rights of creditors. For, if all of the appraisers must concur in the return, the debtor might, by selecting an appraiser who would not agree to any appraisement made by the other two, effectually defeat, or at least indefinitely postpone, the creditor’s right to enforce his execution;' for the sheriff is forbidden by statute to sell until after the homestead has been set off, and thus, practically, the debtor would’ secure an exemption of all his property from sale, while the statute contemplates an exemption of a part only. The statute,therefore, makes such a provision for the appointment of the appraisers as will prevent such a result and at the same time avoid'' any injustice to the debtor. One of the appraisers being selected by the debtor would naturally be expected to look after the inter-' ests of the debtor, and the other, being selected by the creditor, who would be supposed to have in view the interests of the' creditor, it could not well be expected that these two would agree,' and therefore the statute provides that the other appraiser, who would serve as a kind of umpire, shall be appointed by a public officer, who must be presumed to be impartial, in order that at least one of the appraisers should be entirely indifferent, with no prejudices in favor of either debtor or creditor.

Now, while it is quite true that where the language of a statute is plain and admits of but one construction the courts have no-power to supply any real or supposed defects in such statute in order to avoid inconvenience or injustice, inasmuch as that is exclusively within the domain of the legislative department, yet where the terms of the statute are not plain, but admit of more than one construction, one of which leads to great inconvenience and injustice, and possibly to the defeat or obstruction of the-legislative intent, then the court may, with a view to avoid such results, adopt some other construction more in accordance with the legislative intent. To use the language of Lord Kenyon, C. J., in reference to a similar question, in the case of The King v. Beeston, 3 T. R., at pages 594 and 5: “The construction contended for must have prevailed if the legislature had, in express terms, required it; but as it would be attended with manifest inconvenience, the argument ah inconvenienti ought to have great weight in this case where the legislature have not so required it.

* * * And, indeed, if we were to determine otherwise, the inconvenience would be so great as to make it necessary for the legislature to interfere and pass another law.” In this case the legislature has not, in express terms, required that all of the appraisers should concur in the return, and if we were to determine that all must concur, then it would be necessary for the legislature to interpose and pass another law, in order to avoid great inconvenience, expense, and delay, if not aii entire defeat of the scheme provided for laying off the homestead.

As to the point raised by the plaintiff’s appeal, it is clear that the order of the Circuit Judge was precisely in accordance with the statute. The return of the appraisers being to the effect that the land could not be divided so as to lay off the defendant’s homestead without injury to the remainder, section 1996 of the General Statutes expressly provides what shall be the duty of the sheriff in such a case, before he could make a sale of the premises, and the Circuit Judge could not, properly, have ordered him to make such sale, until after he had complied with the provisions of that section, as the defendant would otherwise have been deprived of a right secured to him by statute.

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

Mr. Justice McGowan concurred.