Elder v. McIntosh

The opinion of the Court was delivered by

The facts out of which this appeal arises are fully stated in the opinion of the Circuit Court. The sole question is whether an alienee of the husband can claim homestead in the land aliened against a judgment in favor of alienor’s widow for a sum of money assessed in lieu of her dower in the land.

*292 The provision of the Constitution exempting to the head of any family a homestead in lands was not intended, nor can it be construed, to shield the homestead against a right, title or encumbrance which is paramount to the right of homestead. When the right of dower attaches to land, it is paramount to the right of any other person claiming the land, or any interest therein under the husband by any subsequent act of his. Tibbetts v. Langley Mfg. Co., 12 S. C. 465; Shell v. Duncan, 31 S. C. 566, 10 S. E. 330. It was unnecessary to rest the circuit decision, to any extent, upon the ground that the value of the dower estate may be said to be pro tanto the purchase money of the land, SO' as to bring the case within the exception in the 'Constitution of obligations contracted for the purchase money of the homestead. In other respects, the opinion of the Circuit Court, as reported, is satisfactory, and for the reasons therein stated, the judgment is affirmed.

dissenting. This is an action tp recover dower in two lots of land situated in the town of Winnsboro and known for the purposes of this case as lots E and M, as designated on a surveyor’s plat made by J. C. Caldwell on November 23, 1882. Francis Elder, plaintiff’s deceased husband, conveyed all his property, real and personal, in the year 1882 to J. E. McDonald, as trustee for the benefit of his creditors, and the trustee on December 4, 1882, sold1 the two lots in question, together with a large house then situated thereon, to Mrs. C. L. Ellison for $1,655. Afterwards the house was destroyed by fire, and lots E and M, with another lot S, on which plaintiff had renounced her dower, were sold to Ketchin and Elliott. They conveyed the three lots for a consideration of $600 to1 one Amelia McIntosh, whose heirs at law are defendants in this action.

The probate judge found that plaintiff was entitled tO' her dower in lots L and M, and, a writ of admeasurement having • been issued, the commissioners reported that dower *293 could not be equally and fairly set off in kind. Taking the valuation of the realty at the time of alienation by the husband as the basis of their calculation, they assessed $275.83, with interest from the death of her husband, as the gross sum to be paid to the plaintiff in lieu of her dower. The return was confirmed, judgment entered and execution duly issued against the property of the defendants. Thereupon they served notice upon the plaintiff demanding that a homestead be set off to them in the three lots before levy or sale. The defendant Simon McIntosh is the husband of ikmelia McIntosh, and the other defendants are her children; it -does not distinctly appear which of them are heads of families. It is admitted that they own no- property besides- the three lots above mentioned, whose value has always been, since the conveyance to Amelia McIntosh, less than $1,000.

On appeal to the Circuit Court from the return of the commissioners, allowing and setting off the three lots- as a homestead to the defendants, as heirs at law of Amelia McIntosh, Judge Klugh held that the judgment for the assessment, standing in lieu of dower, retained the nature and incidents of the dower estate, and as- such was superior to the claim of homestead. He further held that even if Simon McIntosh, as the head of a family, could claim a homestead to the amount of his interest against the judgment, it was impossible to set off his share, as it was an undivided third of the land. The question- to be decided on this appeal is, does a judgment entered on an assessment of one-sixth of the value of land in lieu of dower constitute such a specific charge -on the entire land as to defeat the claim of homestead in any part of the land?

The right of -dower is limited to a -one-third interest in the land for the life of the widow. The remaining two-thirds' being free from- the dower right, the owner’s homestead right therein is unaffected by it.

The statute regulating the assignment of dower provides that where the land “cannot in the opinion of a majority of *294 the commissioners, be fairly, and equally divided, without manifest disadvantage, then they, or a majority of them, as aforesaid shall assess a sum of money to be paid to the widow in lieu of her dower by the heirs at law, or such other person or persons who may be in possession of the said land.” Civil Code, section 2404. Neither the Constitution nor the statute provides that this assessment shall rank as purchase money, or that it shall be a specific lien on all the land in preference to other liens, or that it shall be superior to the rig'ht of the owner of the land to have his constitutional right of homestead in the two-thirds interest to which the claim of dower does not extend. The assessment cannot, therefore, be a charge on the land superior to1 the homestead beyond the demandant’s interest of one-third for her life.

The principle, as it seems to me, is clearly stated and expressly adjudicated in Williamson v. Gasque, 24 S. C. 100. There the Court says: “But we do not think it necessarily follows that the assessment constitutes a specific lien on the land, which may be enforced by selling it, where the land has been alienated, and the claim is made against one in possession, who is neither heir nor devisee of the deceased husband, and who may have placed encumbrances upon the land before the assessment was made or even the right of dower had accrued. The statute authorizing the assessment as a substitute for dower certainly does not expressly give it any such specific lien, nor indeed any special means for its enforcement; but, on the contrary, simply characterizes it as a ‘sum of money to be paid to the widow in lieu of her dower.’ We know of no principle which would allow the Court to supplement the act by giving the assessment any higher force than that which arises- from its being reduced to judgment against the person who- happens to be in possession of the land.”

It would hardly be contended in a case where one-third of the land was actually set off to the widow that a judgment for her one-third of the rents and profits accruing after the *295 death- of the husband, and for the -costs- of the proceedings would be superior to the homestead; and yet these rents, profits and costs are a part of the -dower claim fixed by the statute and the decisions of the 'Court — as much a part of the dower right as- an assessment in lieu of dower.

It is perfectly clear, as already stated, that the owner of the land has no right of homestead in one-third of the land for the life of the widow, for that is not his property, unless he releases- it from the dower claim by payment of the assessment. Under the case of Williamson v. Gasque, if senior judgments or the homestead claim interfere with enforcement of the judgment for the sum of money assessed in lieu of dower, “the widow would have a clear right to fall back upon her absolute right in the land,” and apply to- the Court for the actual admeasurement of her dower; or if the owner has nothing- beyond the homestead she could sell under -execution the one-third undivided interest for her life in the land in which her dower right is superior to the homestead right, and the purchaser could then- bring his action for partition.

It seems very clear to me, however, that the defendants have no right of homestead against the judgment and -execution in this case by reason of the fact that they are the husband and children of Amelia McIntosh through whom they derive the land by inheritance. Amelia McIntosh died in 1905, and the plaintiff’s right of action for dower did not accrue until the death of her husband in 1906. Hence there never was any claim of dower against Amelia McIntosh, and the judgment and execution do not, and could not, run against her, and so there could be no homestead right-in her favor or in favor of the, defendants, as her husband and children, her family, against this judgment and execution. But such of the defendants as are heads of families are entitled to homesteads in their own right against the judgment to the extent of his or her interest in the two-thirds of the land not subject to the claim of dower.

*296 The difficulty of assigning a homestead is no argument against allowing the right to a party entitled to it under the Constitution. All parties' are before the Court, and the Court has jurisdiction to order partition or take any other proceedings not contrary to law necessary to provide for the enjoyment of their rights by all parties concerned. Atkinson v. Jackson, 24 S. C. 594.

It seems to me the judgment of the Circuit Court should be modified according to the views herein expressed.