McMaster v. Arthur

The opinion'of the court was delivered by Mr. Chief Justice Simpson. One Stephen W. McKenzie, late of Richland County, died in 1887, testate, leaving a widow, Harriet McKenzie, the defendant, and two minor daughters. His estate consisted of a small amount of personal property, and two small houses and two lots of land situate in the city of Columbia. The widow declined to take under the will, and the estate of the deceased being indebted, a proceeding was instituted in the Court of Common Pleas, in the nature of a creditors’ bill, against [513] the defendant Arthur as administrator with the will annexed, and the said widow and children of the deceased, wherein John McMaster was plaintiff, who established a claim of $35 against said estate, and an order was obtained directing the master to sell the premises described in the complaint for cash, the proceeds to be held subject to the further order of the court. Before the sale, Mrs. McKenzie moved the court on notice for an order to open this judgment and for leave to file an answer for the purpose of setting up a right of homestead in the lands of her deceased husband, for the settlement of whose estate the proceedings above mentioned had been instituted. This motion was refused by his honor, Judge Fraser, presiding, who held that Mrs. McKenzie not having answered to the proceedings above, although the summons in the case had been duly served upon her, it was now too late for her to come in. He further said that he did not think that the right of homestead in its integrity was necessarily involved in the proceeding to settle the estate, and that where no process had been lodged, proceedings should be had under section 2002, General Statutes. Thereupon Mrs. McKenzie filed a petition before the master for a homestead. This petition does not seem to have been acted upon' by the master, and on the day upon which the land was ordered to be sold the master offered it for sale, when Mr. Crawford, the attorney of the petitioner, gave notice of the claim of his client, w’hereupon the master announced that the land would be sold subject to the claim of homestead and proceeded with the sale, when Mr. Crawford, as attorney for Mrs. McKenzie, bid off the land at the price of $280, who failing to comply, a rule ■was issued against him why he should not be attached for contempt. Mr. CrawTord answered the rule, enlarging therein the facts as above, upon the hearing of which his honor, Judge Aldrich, deeming the return satisfactory, discharged the same. The appeal is from this order, and it is based upon four exceptions, of which the following are copies: “I. Because the return only set up as a ground for discharge that Harriet McKenzie, a party to said suit, was entitled to a homestead in the lands sold, whereas she was effectually barred and concluded from claiming homestead as against John McMas [514] ter, in the lands sold, by reason of the decree or judgment made or rendered in the case of McMaster v. Arthur, admr., &c., et al., and her children were likewise concluded by reason of the matters and things therein found and determined. “2. Because even if Harriet McKenzie and her children were entitled to homestead, she could not claim it out of the proceeds of sale, and the respondent was bound to pay the amount of his bid in, which was subject to the plaintiff’s claim, as said bid was over and above the homestead, and was made subject to any homestead right. “3. Because the return was insufficient in setting up that the master should have set off homestead, inasmuch as the master had no jurisdiction under section 2002 of General Statutes to set off homestead, as process had been issued in said action to sell the said land. “4. Because the judge erred in awarding costs against the plaintiff to the respondent.” We are not aware of any law which could be invoked in support of the first exception. The widow and children of a deceased debtor are entitled to claim a homestead in the lands of the deceased husband and father, where he could have claimed it in his life time. Now, there can be no doubt that had Stephen McKenzie been sued on the claim of plaintiff in his life-time, and judgment had been obtained thereon, this would not have deprived him of the right to claim a homestead; on the contrary, this would have presented the very state of facts upon which his claim would have been enforced. True, the judgment here was not obtained in the life-time of the debtor, Stephen McKenzie, but it was obtained on a debt of his after his death, in a proceeding for the settlement of his estate against his administrator and heirs at law, John McMaster being the plaintiff. The debt claimed was a valid debt, and there was no defence thereto set up, nor could there have been ; but it seems to us that instead of its existence defeating the homestead, it furnished the reason why it should be claimed. Nor do we think that the widow and children w-ere required to claim it in that proceeding. That was a proceeding in the Court of Common Pleas, which court was without full jurisdiction as to [515] homesteads, the general assembly having provided statutory proceedings in such cases other than such as can be furnished by the Court of Common Pleas, and which this court has several times held must as a general rule be followed. Norton v. Bradham, 21 S. C., 384; Ex parte Strobel, 2 S. C., 309. Such being the fact, wé do not think that the failure of the widow and children to set up their claim in that proceeding, nor their silence, nor their seeming acquiescence in the order of sale, should shut off the claim now endeavored to be enforced in the mode provided by the statute, as they supposed. As to the 2nd exception, we do not understand that Mrs. McKenzie is claiming a homestead out of the proceeds of the land, but she is claiming it out of the land itself. Her position is that the judgment had no lien, and that the sale thereunder was illegal; that she bought nothing, and therefore is not bound to pay her bid. We think the sale by the master was illegal, for a different reason from that given by the petitioner. The master supplemented the order of the court by a condition not found in said order, to wit, that the land should be sold subject to the claim of the homestead. This addition to the order was made by the master on the day of sale, when Mr. Crawford, as attorney of the petitioner, gave notice of this claim ; but by what authority could the master thus supplement said order? AVe know of none; and even admitting for this case, that had the order been carried out according to its terms, that the result might have been different, yet said order not having been executed, the matter stands as if there had been no sale. It was a void sale, the master having no authority to sell as he did (Bailey v. Bailey. 9 Rich. Eq., 395), and consequently the petitioner was not bound to pay in her bid. As to the third exception. There is no doubt but that the widow and children of the deceased debtor are entitled to a homestead out of his lands (section 1997, Gen. Stat.); and notwithstanding the fact that the decree ordering the sale may be regarded as “process” technically, yet the purpose of the act being to secure such-homestead to such'claimants, we think the spirit and intent of the act would sanction the application here; and that the master should have set off the homestead before proceeding [516] with the sale. He was an officer holding a process for sale, and under the act in such cases he was bound to set off the homestead before selling. Sections 1994 and 1997, General Statutes. The 4th exception is as to the costs. Appellant submitted no argument upon this point; we suppose therefore that it was abandoned. We may say, however, that we see no error as to that matter. The appeal has been considered as if the rule had been served upon Mrs. McKenzie, the real bidder at the sale in question. But if the case is to be regarded as one against Mr. Crawford personally, it clearly appears that he was not bidding for himself, but was bidding as attorney for Mrs. McKenzie, which was known to the master, and his bid being accepted as such, he would not be amenable to a rule. So in any event we think that the discharge of the rule was proper. It is the judgment of this court, that the judgment of the Circuit Court be affirmed. Let the case be remanded, with the right of the petitioner to have the homestead set off by the master or other officer holding process, and should there be an excess of land over and above the homestead, said excess to be sold under such order as may be deemed necessary, for the benefit of appellant .and such other creditors as may be entitled thereto.