Norton v. Bradham

Citations

• 21 S.C. 375
• 1884 S.C. LEXIS 109

Syllabus

<p>1. AVhere the debt was contracted prior to the constitutional amendment of 1880, the question of homestead must be determined by the provisions of the constitution as originally adopted.</p> <p>2. Section 20 of article I. of the constitution, directing a homestead exemption, is the mere general declaration of a right, which is subsequently defined and limited in section 32 of article II.</p> <p>3. The legislature cannot change the character, amount, or beneficiaries of the exemptions provided for in section 32 of article II., the matter of exemptions having been fully occupied by that section.</p> <p>4. A constitutional provision or statute exempting a homestead from levy and sale is not in derogation of common law, but is remedial in character, and should be so construed as to suppress the mischief and advance the remedy. A dictum, in Garaty v. Dubose, 5 S. O., 500, disputed.</p> <p>5. The object of the constitution was to secure a homestead to the family ; the right of homestead was not limited to property owned by the head of the family, nor secured only against his debts.</p> <p>6. Besides, in using the words “to secure the full enjoyment of said homestead to the person entitled thereto, or to the head of any family,” the constitution shows that this exemption was for the benefit of some persons other than the heads of families. In a written constitution, force and effect must be given, if possible, to every clause.</p> <p>7. Therefore, the legislature had full power to enact the act of 1874 (15 Stat., 589), which extends to a wife, living with her husband who owns no property, the protection of a homestead exemption as against her own debts.</p> <p>8. The terms of a constitutional amendment cannot control this court in giving construction to the provisions of the constitution as they originally stood.</p> <p>9. AVhere land was sold under partition proceedings, and a judgment creditor of one of the parties sought to enforce his lien against his debtor’s share