Keller v. Myers

The opinion of the Court was delivered by Moses, C. J. Joseph A. ICeller, the appellant, on the eighth February, 1872, obtained in the Circuit Court for Orangeburg County a judgment against Levi Myers and others, which was duly entered on the same day, and, on the next, execution thereon was lodged in the Sheriff’s office, on which, on the tenth, a levy was made of two several tracts of land — -the one containing two hundred and five acres (more or less), and the other one hundred and three acres (more or less), as the property of the said Myers. Proceedings under the Homestead Act were instituted by Myers, [16] and on the 23d of February, 1872, the appraisers, duly appointed for the purpose, assigned and set off to him as a homestead the tract containing two hundred and five acres, valued at $500. The other tract, not appurtenant to the dwelling house aud out-buildings, but entirely separate therefrom, was sold by the Sheriff, under the said levy, on 1st of April, 1872, for the sum of $350, and the remainder in the homestead tract for $55. Myers claiming the said proceeds under the Ac't of the General Assembly “to reduce all Acts and parts of Acts to determine and perpetuate the homestead into one Act, and to amend the same,” approved March 13, 1872, (15 Stat., 229), Keller, the appellant, sought, by proceedings below, to have the money in the hands of the Sheriff applied in satisfaction of his judgment; the Circuit Judge refusing, he asks, by appeal to this Court, to reverse his order. When Myers claimed his homestead it was by virtue of the provision of the Constitution and the Act of 1868 “to determine and pepetuate the homestead,” (14 Stat., 19). He acquired no further nor more extended rights in regard to it than were thereunder given, and if any succeeding Legislature in any manner changed or varied the laws in respect to the homestead privilege, either by increasing or diminishing its extent, his rights, as established and confirmed, could not be thereby affected. His claim of homestead had been administered; there was nothing further to be adjudicated, and subsequent change in the law could not operate on a transaction which had been consummated through judicial proceedings.—See Taylor vs. Miller, 13 How., 293; Frierson vs. Westberry, 11 Rich., 335. It seems to have been the express intention of the Act of March 13, 1872, to extend the provisions, under its third Section, only to cases of homestead assigned under it. Its language admits of no other conclusion, and Myers having already accepted the 205 acres of land as his homestead under the Act of 1868, although it was assessed at only five hundred dollars, has no right to any further extension under the Act of March, 1872, for, by its own avowal, the benefit which he now seeks applies only to assignments of homestead through the force of its first Section. In the consideration of the case below it would seem that the Constitution and the Act of 1868 were construed as securing a right of homestead in real estate to the full value of one thousand dollars. A reference to both will, however, show that it is not to [17] exceed that value, and, in the view of the Constitution, “ is to consist of dwelling house, outbuildings and lands appurtenant.” The Act of 1868 declares that when the homestead is set off “ no further proceedings shall be had against it, but the residue of the lands and tenements of the head of the family, if any more or other he shall have, shall be liable to levy, attachment and sale.” The third Section of the Act of March, 1872, only makes further provision where the real estate assigned as a homestead under it was in value less than one thousand dollars, and, in that event, the difference was. to be paid to the claimant, out of sales of any other land, in preference to the creditor. How far it may involve a constitutional objection, by including in the homestead exemption lands other than “the dwelling house, outbuildings and lands appurtenant,” it is not necessary for us now to consider or determine. Por the other reasons expressed we hold the judgment of the Circuit Court erroneous, and the motion'to reverse it is granted. Wright, A. J., and Willard, A. J., concurred.