Elliott v. Mackorell

Citations

• 19 S.C. 238
• 1883 S.C. LEXIS 76

Syllabus

<p>1. For a trustee to apply money then impressed with a trust in part payment, for land, and to give mortgage for balance due, would be a breach of trust. Mathews v. Heyward, 2 8. 0.239. Not so, however, when the trust is created by the deed executed contemporaneously with the mortgage. Barrett v. Cochran, 8 8. C. 49 and 11 8. C. 35.</p> <p>2. The purpose of the homestead provisions in the constitution was not to-create any new estate, or to invest estates already existing with any new qualities, or to subject them to any restrictions, but to secure a right of' exemption by forbidding the use of the process of the court to sell certain» property for the payment of debts.</p> <p>3. A homestead is not an estate but a mere right of exemption from seizure ■ and sale for the payment of debt.</p> <p>4. The constitution does not authorize the legislature to take property away from one man and vest it in another — not even in his wife and children.</p> <p>5. A debtor has the right to sell or mortgage his homestead after it has been-assigned to him, and the legislature has no power to deprive him of such right.</p> <p>6. A debtor’s land was sold under execution, and §1,000 of the purchase-money was reserved as a homestead exemption under an order of court-requiring the sheriff to apply such money to the “purchase of a homestead for defendant, under his direction, and that he have leave to take title for-the same in the name of his wife and in trust for his children.” Subsequently the sheriff) by defendant’s direction, paid the money to the purchaser of this land (who was the execution plaintiff), who made deed to such defendant as trustee for his wife and children, and at the same time took mortgage for a credit portion of the purchase-money. Held, that there was no trust created prior to the execution of this deed and contemporary mortgage; that the transaction was unobjectionable, and that the-mortgage was entitled to payment before any application of the proceeds of sale