McMaster v. Arthur

Citations

• 33 S.C. 512
• 12 S.E. 308
• 1890 S.C. LEXIS 169

Syllabus

<p>1. The widow and minor children of a deceased debtor are entitled to a homestead out of his estate as against his debts; and a decree by default against the widow and children, adjudging a sale of all the lands of the deceased debtor to pay his debts, is not a bar to a subsequent proceeding by them before sale is made to obtain such homestead in the mode prescribed by law.</p> <p>2. Where the master announces that a sale will be made subject to a claim of homestead, when no such provision is contained in the order of sale, he thereby adds to the terms of sale and renders the sale void, and the purchaser, the homestead claimant, is not bound to comply. Mr. Justice McIver, dissenting.</p> <p>3. A decree for the sale of land may be regarded as technical “process,” and the spirit and intent of the law will justify an application to the master, to whom such decree of sale is directed, to set off homestead in the lands so ordered to be sold; and it will then become his duty to have such homestead admeasured. Mr. Justice McIver, dissenting, so far as a decree for sale is held to be “process.”</p> <p>4. Where an attorney bids in land at a judicial sale and has the bid charged to himself “as attorney,” and the selling officer, knowing for whom the attorney is acting, accepts the bid as made, no rule should issue against the attorney personally for his failure to comply.</p>