Wood v. Timmerman , 29 S.C. 175 ( 1888 )

The opinion of the court was delivered by

Mr. Chibe Justice Simpson.

The grounds of appeal in this case do not make it necessary to state all of the questions and facts passed upon below, but only so much thereof as may be applicable to said grounds. M. B. Timmerman conveyed a certain tract of land, containing 242 acres, to his wife, Savannah. He seems to have been indebted to several parties at the time, many of whom obtained judgment against him, after the execution of the deed to his wife; but one creditor, the Navassa Guano Company, obtained a judgment before, and this was the only claim that had lien on the land of Timmerman at the date of his conveyance to the said Savannah. Under this judgment the sheriff levied upon and sold the said tract, the plaintiffs being the purchasers at the price of $1,000. The plaintiffs then brought the action below for the recovery of the land, and also to set aside the deed to the said Savannah, as fraudulent and void because executed to hinder, delay, and defeat creditors. Several defences were set up, unnecessary to be mentioned here, and the defendant, M. B. Timmerman, claimed a homestead.

His honor, Judge Witherspoon, found as matter of fact, that the conveyance to Savannah was void, because intended to defraud creditors (from which finding there has been no appeal). He therefore ordered said deed to be delivered up and cancelled. He, however, further ordered and decreed that the defendant, M. B. Timmerman, was entitled to a homestead, and that he should be allowed twenty days from notice of the filing of his decree to apply by petition to the master for Edgefield County to have a homestead assigned to him out of the land in dispute, &c. From this decree the plaintiffs have appealed on the following grounds: “1. Because the court erred in allowing M. B. Timmerman a homestead in the tract of land described in the complaint. 2. Because- he erred in finding it even necessary to set aside the deed made by M. B. Timmerman to his wife, Savannah, in order to give to the plaintiffs the possession of the land. 3. Because M. B. Timmerman is estopped from claiming or obtaining homestead.”

The conveyance of M. B. Timmerman to his wife having been found fraudulent as to his creditors, it followed necessarily that said deed should be vacated and set aside, at least in so far as it affected the rights of said creditors, in accordance with the prayer of the complaint. We therefore do not understand appellants’ second exception above. The complaint is not set out in the “Case,” but it is stated in the decree of his honor, that the action of plaintiffs was to recover the land, and to have a conveyance of said land by the defendant, M. B. Timmerman, to his wife the defendant, Savannah Timmerman, set aside on the ground that said conveyance was intended to hinder, delay, and defraud the creditors of the defendant, M. B. Timmerman. This object has been accomplished, and at the demand of the plaintiffs. We do not therefore understand the exception as to said matter. We suppose,, hoivever, the main point in the appeal is in reference to the homestead. And that the object of appellants is to deny the right of a homestead being carved out of the land in dispute. Or, in other words, that the deed to the sheriff conveyed the entire tract to the said plaintiffs.

We think his honor was correct in holding that the homestead was not the subject of levy and sale, and therefore could not pass under the sheriff’s deed. The debts of M. B. Timmerman were all since the constitution of 1868; the judgments thereon had no lien on the homestead. Cantrell v. Fowler, 24 S. C., 424. He was a married man. He was entitled to a homestead as against said debts, and the sheriff had no right to levy thereon. Tim-merman had the right to sell it, and it is true that, having sold it to his wife, as against him she might have a paramount claim, but as to his creditors, they have no interest; nor have they any legal right for the reason that they have no interest to object to the decree of the judge upon the subject. The wife might have appealed in so far as the decree vacates the deed to the extent of the homestead. But she makes no appeal, and she acquiesces in the setting aside of the entire deed, which presents the case as if no deed had ever been executed, and therefore entitles M. B. Timmerman to claim his homestead, as allowed in the decree.

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

Mr. Justice McIver concurred. Mr. Justice McGowan did not concur.