Myers v. Ham

The opinion of the court was delivered by Mr. Chief Justice Simpson. The action below was an action on the equity side of the court, for the recovery and assignment of a homestead in certain lands located in Georgetown county. The lands in question formerly belonged to the appellant, but were sold in 1882 by the sheriff of Georgetown under an execution against the appellant in favor of respondent, who became the purchaser. No claim was made of the homestead at the sale. It is admitted, however, that the debt of appellant to the respondent under which the sale was made was contracted since the constitution of 1868. Since the sale appellant has been a tenant of respondent. The answer denied, first, that appellant was a married man, or the head of a family; and, second, the fact that appellant suffered the land to be sold to respondent without objection, or claim of homestead, was also interposed as' a defense by way of estoppel. The Circuit judge dismissed the complaint on these two grounds set out in the answer. While we must affirm the judgment below, yet we do not' concur on the grounds upon which it was based. We think that the act of 1865, 13 Stat. 269, as construed in Davenport v. [527] Caldwell, 10 S. C. 335, and State v. Whaley, Id. 500, is the act under which the facts here should have been considered, instead •of the act of 1872, upon which it seems that the Circuit judge relied. It appears that the appellant and Delia were married before emancipation “ according to plantation law.” They went to their master and had a house assigned them, and they were thus living together as man and wife a short time as slaves, when the act of 1865 was passed. They had several children. 'True, they have been living apart for the last ten years, but their condition at the passage of the act of 1865, was as above described, which made their children legitimate, one of whom, the youngest, Cupid, is still living with the appellant, his father. This constitutes him the head of a family. Garaty & Armstrong v. Dubose, 5 S. C. 499. Nor do we think that the conduct of the appellant in not forbidding the sale by the sheriff estops him from still claiming his homestead, if he is otherwise entitled thereto. Section 1994, .general statutes, while declaring that a homestead shall be exempt, further provides, that it shall be the duty of the sheriff before selling, to have it set off, and if the debtor neglects to nominate an appraiser, the sheriff shall appoint. And in section 1998 is found the following: “No waiver, however solemn, shall defeat the right.” Here, the appellant was in possession when the land was sold, he was simply silent, and remained in possession until he was ejected by a trial justice. The purchaser was his creditor, and has not been injured. This is no place for the doctrine of estoppel. Bull v. Rowe, 13 S. C. 370; Douglass v. Craig, 13 S. C. 375. The judgment, however, must be affirmed on a different ground from those above. The right of homestead is a statutory right, or rather a constitutional right, to be enforced by statutory proceedings. Under the statutes upon the subject of homestead, the Circuit Court is without original jurisdiction therein. Such jurisdiction has not been conferred upon this court either on its law or equity side. The act of force in reference to homesteads prescribes the mode of obtaining it in clear and distinct terms, and provides the necessary machinery to that end, suited to all eases where the right has attached, [528] whether it be in a debtor himself, with mesne or final process impending or otherwise, or whether it be in his widow and children. Where a right is provided by statute, to be enforced in a prescribed mode, no other can be resorted to. The mode prescribed is exclusive. Ex Parte Lewie, 17 S. C. 156 ; Howze v. Howze, 2 S. C. 222. It is the judgment of this court that the judgment of the Circuit Court be affirmed without prejudice, however, to appellant, in any subsequent proceeding he may institute, if so advised, to obtain a homestead. Mr. Justice McIyer concurred generally, but Mr. Justice McGowan only in the result.