Rollings v. Evans

The opinion of the court was delivered by Mr. Chief Justice Simpson. (Omitting the statement of facts.) The appeal involves the two questions decided below, which we will consider in their order above. First. Was the defendant the head of a family, in a homestead sense, when the property in question was levied upon by the plaintiff? The meaning of the term family, as taken from the best lexicographers, is: “The collective body of persons who live in one house, and under one head or manager, a household, including parents, children, and servants, and, as the case may be, lodgers or boarders.” Webster. If this is the true meaning of the term family, and if it was used in the constitution in this sense, there certainly could be no doubt that the defendant was the head of a family at the date of the levy. Because it is admitted that his son was a part of his household, living with him in the same house, under his control and employment, he being the head and the manager. Have we any reason to conclude that this term was .used in the constitution in some curtailed and limited sense, and not in this general sense? In Garaty v. Dubose (5 S. C., 500), the court held that a bachelor, having no person dependent upon him, and none residing with him except servants and employees, is not the “head of a family” in the,constitutional sense; and Chief Justice Moses, in delivering the opinion of the court, did intimate that inasmuch as the homestead exemption was in derogation of the rights of creditors at common law, it was not entitled to such liberal construction as would extend it to those who are not within the spirit and policy of the provision. Even admitting this to be true, yet he laid down no rule which would authorize [327] tbe court to resort to anything else but the general meaning of the term “family,” when called upon to determine whether a certain party was the head of the family. In the case of Garaty v. Dubose the court held that Dubose was not entitled to the homestead. The facts of that case, however, will show that in excluding Dubose the court did not fall back on any limited or restricted sense of the term “family” in order to reach its conclusion, but applied the ordinary meaning to that term. Dubose was a bachelor, a farmer, with hired laborers and employees, carrying on his farming operations. But it did not appear that any one was living with him under the same roof and a part of the same household. He, then, was no.t entitled to a homestead under the most liberal construction of the term family, as he was in no sense the “head of a family.” Has the term “family” been limited in its general and ordinary meaning as defined in Webster by any of our cases on the subject of homestead? We have found no such case. On the contrary, the case of Bradley v. Rodelsperger (3 S. C., 227) holds expressly that this term, as used in the constitution, must be taken in its ordinary sense. And in that case the court below having held that a childless widow could not be the head of a family in the sense of the constitution, this court reversed the judgment below, and in remanding the ease said: “The constitution has not given any definition of the term family, nor indicated any of its necessary ingredients; the term must, therefore, be taken in its ordinary sense. In this sense it is not essential that it should include children.” Taking the term “family,” then, in its ordinary sense, which includes persons living in one house, and under one head or manager, we think the Circuit Judge was right in holding below that the defendant was the “head of a family.” His son was living with him as a part of his family, and his son being a married man, no doubt entitled to have his wife and children with him, if he had any children, certainly this constituted a family, of which the defendant was the head. But, independent of this, we think the defendant was entitled to the homestead under the principle of the case of Chafee & Co. v. Rainey, 21 S. C., 11. In that case the defendant was a mar [328] ried man when the judgment was entered, but became a widower and was married again when the levy was made. The homestead was resisted on the ground that a lien attached during the time the defendant was a widower, which his subsequent marriage could not divest. This court held that the question in such cases is not one of divesting liens, but is whether a state of facts constituting a right of homestead exists at the time that the sale is attempted to be enforced; in other words, whether at that time the defendant is the “head of a family,” and whether the property claimed to be exempted is the family homestead. This principle may not apply to the personal property herein under the case of Pender v. Lancaster (14 S. C., 25), that property having been levied upon while the defendant was a widower. But the homestead in that, as well as in the real estate,' we think was exempt, as held above. On the second question the Circuit Judge upon full testimony having determined that the homestead allowed was not excessive, we see nothing in that testimony authorizing this court to overrule his finding on that subject. It is the judgment of this court that the judgment of the Circuit Court be affirmed.