The opinion of the Court was delivered by
Wright, A. J.In this case the plaintiff obtained a judgment against the defendant for one hundred and four dollars and eight cents on a promissory note given for the erection of improvements on the homestead of the defendant in the fall of 1867. On the 5th of February, 1872, under the third Section of the Act of the General Assembly of 1868 entitled “ An Act to determine and perpetuate the homestead,” a motion was made to the Court for a certificate, which was refused, and from the order refusing a certificate an appeal has been taken to this Court. The question to be determined is, did the Constitution of 1868, from its ratification, exempt from attachment, levy or sale the family homestead, or is the “ head of every family residing in this State” not entitled to the homestead until it shall have been “ set off by the Sheriff or other officer exe*415cuting the process” as provided by the Act of the General Assembly of 1868. Relative to the family homestead the Constitution of 1868 is very expressive, clear and precise. Section 20, Article I, declares that “a reasonable amount of property as a homestead shall be exempted from seizure or sale for the payment of any debts or liabilities, except for the payment of such obligations as are provided in this Constitution.”
The obligations or exceptions are mentioned or enumerated in Section 32, Article II. The Section is as follows: “ The family homestead of the head of each family residing in this State, such homestead consisting of dwelling house, out buildings and lands appurtenant, not to exceed the value of one thousand dollars, and yearly products thereof, shall be exempt from attachment, levy or sale on any mesne or final process, issued from any Court.” This Section proceeds further, and after giving the character of the property to be exempt, says: “Provided, That no property shall be exempt from attachment, levy or sale for taxes or payment of obligations contracted for the purchase of said homestead, or the erection of improvements thereon: Provided, further, That the yearly products of said homestead shall not be exempt from attachment, levy or sale for the payment of obligations contracted in the production of the same. It shall be the duty of the General Assembly, at their first session, to enforce the provisions of this Section by suitable legislation.”
The homestead means simply the place of residence of the family, and the act of the “ Sheriff or other officer,” in setting off a certain portion of land about the residence is only determining the value of what shall be exempt “from attachment, levy or sale on any mesne or final process issuing from any Court,” and does not contribute anything to the making of the homestead. To carry out the requirements of Section 32 of Article II of the Constitution of 1868, the General Assembly, at its first session after the ratification of the said Constitution, passed an Act entitled “An Act to determine and perpetuate the homestead,” in which it is said “ whenever the real estate of the head of a family, residing in this State, shall be levied upon by virtue of any mesne or final process issued from any Court upon any judgment obtained upon any right of action, whether arising previous or subsequent to the ratification of the Constitution of the ¡State of South Carolina, if the same be the family homestead of such person, the Sheriff or other officer executing said process shall cause a homestead, such as said person may select, not to ex*416ceed the value of one thousand dollars, to be set off to said person in the manner following, to wit[Here the manner in which the “Sheriff or other officer” is to proceed in laying off the homestead is clearly and specifically set forth.] It appears that the General Assembly, by the use of the words, “if the same be the family homestead,” considered that the right of homestead existed and should be protected by the Constitution of 1868, and the laws thereunder.
Section 3 of the same Act says : “ The exemption of Sections 1 and 2 of this Act shall not extend to any attachment, levy or sale on any mesne or final process issuing to secure or enforce the payment of taxes or obligations contracted for the purchase of said homestead, or obligations contracted for the erection of improvements thereon: Provided, The Court, or authority issuing said process, shall certify thereon that the same is issued for some one or more, and no other, of said purposes: Provided, further, The yearly products of said homestead shall be subject to attachment, levy and sale to secure or enforce the payment of obligations contracted in the production of the same; but the Court issuing the process therefor shall certify thereon that the same is issued for said purpose and no other.” It is perceived that there are three classes of obligations or claims that are specially excepted, and these stand good against the homestead, viz: Taxes, purchase money, and improvements made upon the homestead; therefore, the right of the homestead existing, and that right being recognized and sanctioned by the Constitution of 1868, and the right to make the homestead liable for certain obligations that existed at the ratification of the said Constitution, or that might exist thereafter, and the right to enforce payment of such obligations against the homestead not being interfered with, but specially protected by the Constitution and the laws thereunder, the motion asked for should have been granted.
Willard, A. J., concurred.