The opinion of the Court was delivered by
Willard, A. J.The defendant, Enslow, the head of a family residing within this State, mortgaged, in 1871, the premises on which he resided with his family. The premises appear to be such as might be considered a family homestead within the sense of the Constitution allowing exemption from certain process as against premises so held and occupied. These premises have been sold under a decree foreclosing such mortgage, and a portion of the purchase money arising from such sale is held under a decree of the Circuit Court asserting that the defendant, Enslow, is entitled to the same in right of his claim to homestead exemption as against his mortgage of said premises.
The appeal is from that decree and alleges that the homestead right cannot be asserted as against' the mortgage made by Enslow.
There is no doubt but that Enslow could make a valid mortgage. A homestead had never been actually set apart. The homestead provisions do not in terms prevent the owner of lands from mortgaging them. Such an intent cannot be enforced as against the common law right of dominion unless it is found to be essential to the operation of the homestead provisions as it regards the specific effect of those provisions; All that the Constitution seeks to accomplish is to prevent premises so held and occupied from being subjected to process for the purpose of enforcing obligations of a certain character — Article II, Section 32. The right of dominion of the owner of lands, including the power to alien or encumber, is not *20either directly or indirectly the subject of this provision. The whole force of the constitutional provision is expended in preventing interference in certain cases with that dominion. The statutes in pursuance of this clause of the Constitution do not enlarge the nature or operation of the homestead provision of the Constitution. Whether the Legislature had not the right to extend the measure of relief afforded to the heads of families by the Section above cited under a more general grant of legislative authority conferred by Section 20, Article I, of the Constitution, need not be considered at this time, for no such exercise of authority beyond the terms of Section 32, Article II, has been attempted. The statutes (General Statutes, 474,) merely provide specific means for accomplishing that which constituted the end and purpose of the Constitution as contained in Section 32, Article II. Had the mortgagee obtained possession of the mortgaged premises otherwise than by proceedings for their sale,- either under authority conferred by law, or the contract of the parties, on the mortgagee, no question under the Constitution affecting the rightfulness of that provision could have arisen.
It remains, then, only to consider whether a judicial sale for the foreclosure of the mortgage is embraced under the description “ attachment, levy or sale on any mesne or final process issued from any Court,” contained in Section 32, Article II.
The portion of that Section involved in the present construction is as follows : “ The family homestead of the head of each family residing in this State, such homestead consisting of dwelling house, outbuildings and,lands appurtenant, not to exceed the value of one thousand dollars, and yearly product thereof, shall be exempt from attachment, levy or sale on any mesne or final process issued from any Court.” It is obvious that process issued to enforce a judgment or decree for the payment of money, and which may be enforced against the whole estate of the judgment debtor, is here intended. To extend the sense of the Constitution, as demanded by the respondent, Enslow, would be equivalent to holding that no judgment nor order of any Court could bind such a homestead so as to disturb the possession of the occupant. This is manifestly beyond the intention of the Constitution.
It is noticeable that the exemption conferred by the Constitution is not limited in terms to the head of a family holding premises occupied as a family homestead by rightful title. Nor can this be regarded as an unintentional omission, if the object of the Constitu*21tion was merely to shield the possession of the family homestead against creditors having only a general right to subject the lands of their debtors to their judgments; for as against judgment creditors at large there is as much reason for protecting a homestead held by a defective title as one held by a good title. But the whole sense of the Constitution would have to be changed if we are to suppose that no judgment or order of any Court could become the means of ousting the possession of the head of a family, for that construction would necessarily include a judgment recovered by one having good title to the premises against one having a defective title. If we attempt to meet this difficulty by interpolating words in the Constitution, confining the right of exemption to cases where the person claiming such exemption holds by rightful title, then we disturb the provisions and deprive them of their obvious fitness, as they stand, to provide protection against judgment creditors having no other right to the land than that arising from the operation of process issued to enforce a money judgment or decree.
The view just presented is conformable to what was said by the Court in Shelor vs. Mason. — 2 S. C., 233.
The sale for foreclosure was not forbidden by the Constitution as it regards the homestead in question, and the mortgagor has no right to claim any part of the proceeds of sale by reason of the alleged occuption of the mortgaged premises as a family homestead.
The judgment below must be modified accordingly.
Moses, C. J., and Wright, A. J., concurred.