Davis v. Milady

The opinion of the Court was delivered by Mr. Justice Watts. John Milady acquired a tract of land in 1900. It was assigned to him as a homestead in 1903 and the assignment recorded. He died in 1910, survived by a widow, Susan Milady; and his next of kin were some cousins, owing no debts contracted prior to 1896 and leaving of force a will whereby he devised this tract of land to a stranger without assent, written or otherwise, of his surviving widow. This action was commenced to obtain a construction of the will of John Milady. All issues of law and fact were referred to A. D. McFadden, Esq., master for Richland county, to try all issues and report his findings of facts and conclusions of law. His report and exceptions thereto and the decree of his Honor, Judge Spain, and exceptions thereto should be set out in the report of the case. The only question on this appeal is whether the devise under the will of John Milady is .valid, the master holding that it was and the Circuit Court reversing the master’s report, and Susan Milady denies that the devise is valid. Such devise would be valid if testator had died prior to the Constitution of 1895 or if the homestead had been laid off prior to 1895. Bostick v. Chavin, 55 S. C. 429, 33 S. E. 508; Beaty v. Richardson, 56 S. C. 186, 34 S. E. 73. Or perhaps if hq had purchased the land prior to 1895. In Ex parte Bullock, 58 S. C. 329, 36 S. E. 563, no homestead had been laid off. So, too, in Geiger v. Geiger, 57 S. C. 521, 35 S. E. 1031. But the Constitution of 1895, article III, section 38, provides: “That after a homestead has been set off and *142 recorded the same shall not be waived by deed of conveyance, mortgage or otherwise, unless the same be executed by both husband and wife, if both be living.” See also Code of Daws 1902, section 2630. This limitation of the power of disposition was not in the Constitution of 1868, and, therefore, was purposely added to make some change in the rights which the Court had held to exist under the former instrument. Judge Cooley, says the Court, “must lean in favor of a construction which will render every word operative rather than one which may make some idle and nugatory. This rule is applicable with special force to written constitutions in which the people will be presumed tO' have expressed themselves in careful and measured terms corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise when a Court would be justifiable in declaring any portion of a written Constitution nugatory because of ambiguity.” Cooley’s Const. Dim. 58. What is the force of the word “waived?” It is clear that it cannot exclude a grant, or a mortgage, or any other disposition which may be included in the word “otherwise.” In R. & D. Diet., page 1342, it is said: “A person is said to waive a benefit when he renounces or disclaims it. * * * A waiver may be expressed or implied,” and the Century Dictionary defines it to be “the intentional relinquishment of a known right.” Therefore, a deed or devise would be a relinquishment of a right of ownership, and a devise of the right of inheritance which the party waiving would otherwise possess. A deed operates as a grant,' but also as an estoppel and as a waiver. The other word which requires a construction is the word “otherwise.” Does it include a devise ? We think so. The Constitution intended to prevent the alienation of the homestead when once set off, either by deed, or devise or in any other manner, unless the wife joined with the husband in *143 the execution of the conveyance, whether by deed, mortgage or whatever, means it was attempted to be conveyed or waived. Prior to 1895 it was held by the Courts that the homestead, allowed under the Constitution of 1868, did not prevent the head of a family from conveying it, mortgaging it or devising it. The framers of the Constitution of 1895 knew this when they declared that after a homestead had been set off and recorded it could “not be waived by deed of conveyance, mortgage or otherwise, unless the same be executed by both husband and wife, if both be living.” This prevents an alienation by deed or an encumbrance by mortgage, except by an instrument signed by both husband and wife, if both be living, and in our opinion was intended by the framers of the Constitution of 1895 to include every species of disposition, permanent or temporary, which would deprive the family for whose benefit, and by reason of whose existence, the homestead was allowed. There'-" fore, the word “otherwise” was intended to include leases, devises, dedication, grants of right of way, confession of judgment with waiver of homestead claim, and every other possible device by which a husband might deprive his family of the homestead upon whose existence alone he had been able to keep it away from his creditors. In the case of Larsen v. Reynolds, 13 Iowa 579, 81 Am. Dec. 446, it appears that under the law of that State, a conveyance of a homestead is of no validity unless the husband and wife concur in and sign the same, and that such provision prevented a valid mortgage by the husband alone, nor is it made good by the subsequent death of his wife. The Court further says (81 Am. Dec., page 447) : “Upon his death she has a right to continue in its occupation, and it cannot be taken from her by his will or devise.” The Mississippi Courts have held in McDonald v. Sandford, 88 Miss. 633, a mortgage executed by the husband alone is held to be an absolute nullity. In that case Chief Justice Whitehead says: “Whatever name may be given to *144 the wife’s interest in the homestead, whether it be called an estate, or an interest, or a claim, or a right, or a veto power merely, it is such an interest or a right as the statute requires to be conveyed by deed, and a deed to the homestead without the wife joining in the conveyance has been correctly held, in Gulf v. Singleton, 78 Miss. 72, to be an absolute nullity.” In Thomas v. Craft, 55 Fla. 842, the Court, construing the provision of the Florida Constitution that a homestead should not be alienable without the joint consent of husband and wife, held as to the word “alienable” that “no instrument is effectual as an alienation or a conveyance or transfer of title or of any interest in the homestead real estate without the joint consent of husband and wife when that relation exists.” This position is also sustained in Griffith v. Griffith, 59 Fla. 512. “A power in the husband to terminate this freehold with his wife by disposing of the land in his will is inconsistent with the spirit and intent of the statute as manifested in the clauses declaring that no release or waiver, except by deed, and no deed from husband alone without his wife, should be valid in law, and that the exemption should continue after his death for the benefit of his widow and children.” Brettun v. Fox, 100 Mass. 235. In Nebraska the homestead of a married person cannot be conveyed or encumbered, unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife, and it was held in Kolke v. Kolke, 11 L. R. A. (N. S.) 99, that this prevented a lease of the homestead by the husband alone, and he recovered the land from the lessee. This Court has held that the homestead provisions do not create any new estate. Chief Justice Mclver says, in Stewart v. Blalock, 45 S. C. 64: “It is well settled, in this State at least, that the homestead provisions create no new estate and do not invest estates already existing with any *145 new qualities or subject them to any restrictions, but simply secure a right of exemption by forbidding the use of the process of the Court to sell certain property for the payment of debts,” citing Elliott v. Makorell, 19 S. C. 242, and Chalmes v. Turnipseed, 21 S. C. 186. We are of the opinion that John Milady having pur-^ chased this land subsequent to the Constitution of 1895, and having it laid off to him as a homestead in 1902, and no assent by .the wife having ever been given, that he had no power to devise it so that the devise would take effect during his wife’s, Susan Milady’s, life and thereby deprive her of the benefits of the homestead. At the time the homestead was set off, his family consisted of his wife and himself. The homestead was allowed for their benefit and by reason of their existence and once set off could not be disposed of, permanently or temporary, in any manner, whatsoever, by deed, mortgage, devise or otherwise, except that both husband and wife joined in the conveyance by whatever 'name it was called, so as to deprive the family of the homestead upon whose existence he had been able to keep it away from his creditors. Once set apart as a homestead, it had to remain intact as a homestead for the benefit of both, as long as both or either lived, unless both joined in the conveyance. John Milady having died, Susan Milady, his widow, is entitled to enjoy undisturbed the possession of thft homestead during her natural life, but after her death it goes as devised by John Milady. The. title to the property was in him, and under the case of Stewart v. Blalock, supra, no new estate was created, but only his fee burdened with the homestead for the enjoyment of himself and wife, and after his wife’s death his devise will be valid. We do not think by the fundamental and organic law, even such as a constitutional convention has as to how people shall be governed or by an act of the General Assembly of the State, the)'- can dictate to a person how his property shall be dis^posed of finally and take the disposition of it out of his *146 hands. Under the Constitution of 1895, article III, it gives the legislature power to enact laws to exempt a homestead from sale, etc., under process of Court and discharges the title to the homestead from all debts then existing, etc., but it does not create any new estate and in our opinion in the case at bar, Mrs. Milady has the right to continue in exclusive occupation and enjoyment of the homestead during her natural life and at her death it goes as devised under the will of John Milady. Judgment of Circuit Court should be modified as indicated by the views herein expressed. Judgment modified.