Burnside v. Watkins

Citations

• 30 S.C. 459
• 9 S.E. 518
• 1889 S.C. LEXIS 124

Syllabus

<p>1. Where a tract of land was assigned to the widow of an intestate at a certain valuation, and the rest of the real estate was appraised and ordered to he sold, the widow’s share is one-third of the sum of the appraisement of her tract plus the price for which the other lands sold, and not one-third of the appraised value of all the lands. And she having purchased a part of the other lands for $500 and given her bond for §786, when her share in all the real estate, as above decided, was §286 less than the appraised value of the tract assigned to her, it follows that her bond must have been given for equality of partition, as well as for the land purchased.</p> <p>2. Under an execution issued upon a judgment obtained on this bond, this widow (or, she being dead, her children) are entitled to claim homestead in the tract of land so assigned to the widow, (1) because there was no endorsement on 'this judgment to the effect that the judgment was for the purchase money of such tract, which is the only way, under the law, by which the homestead can be sold to pay the purchase money ; and (2) because no such endorsement could have been made, as the bond was not given for that purpose and “no other,” but was given only in part for the purchase money of such tract.</p> <p>3. There was no statutory lien under the act of 1791 (in force at the date of the bond) because (1) the amount due on the tract assigned was not ascertained by the commissioners in partition or by any order of court; (2) no sum of money was assessed by these commissioner’s, to be paid by the widow; and (3) no such lien on a tract assigned existed in favor of the officer of the court, the plaintiff here, who made the sale of the other lands of the estate.</p>