The opinion of the Court was delivered by
Mr. Justice Gary.On the 12th day of July, 1893, an agreement in writing was entered into between W. M. Allison, of the first part, and W. B. DeFoach, of the second part, whereby the party of the first part covenanted to convey to the party of the second part his house and lot in the town of Yorkville, for and in consideration of the sum of $2,200, to be paid as follows: “On or about January 25th, 1894, on the delivery of the deed, the sum of $1,000 and the sum of $1,200 — $600 of said sum of $1,200 to be paid January 1st, 1895, and $600 to be paid January the 1st, 1896. Said sums to be secured by a bond and mortgage of said premises, with interest at seven per cent, per annum. *342And the said party of the second part does covenant and agree to and with the said party of the first part, that the said party of the second part will pay the said several sums as they severally become due, with interest thereon at seven per cent, per annum.”
On or about the 25th day of January, 1894, W. B. DeBoach called upon the said W. M. Allison and apprised him that he was ready and prepared to comply with the terms of said agreement; but the said W. M. Allison stated that he could not then make to the said W. B. DeBoach a deed of conveyance with warranty, on account of not having under his control a certain mortgage held* by the A. B. & B. Association, but placed the said W. B. DeBoach in possession of the premises, which possession he has since retained. Thereafter, on the 1st day of February, 1894, W. M. Allison made and executed a deed of assignment to T. F. McDow, Bsq., embracing the aforesaid premises, but subject to the equities of W. B. DeBoach, and reserving the rights of homestead. Thereafter, on the 27th day of February, 1894 (W. B. De-Boach being then as now in possession of the premises), W. M. Allison filed his petition in the office of the clerk of the Court of Common Pleas for York County, praying for an allotment of homestead out of said premises. The petitioner was then, as he still is, the head of a family, and a resident of this State, and at the time of his petition no process had been issued against his property.
Appraisers were duly appointed, who made and filed their return according to law, to which return the creditors of petitioner filed exceptions within thirty days after the filing of said return. Upon their exceptions and the testimony taken in open Court, the case was heard by his Honor, Judge Fraser, who, on the 13th day of July, 1894, made and filed his decree, which, together with appellant’s exceptions, will be incorporated in the report of the case.
The exceptions raise practically but the one question, whether the Circuit Judge was in error in refusing to allow the appellant his homestead in said house and lot. Section *3432126 of the Revised Statutes provides that: “A homestead in lands, whether held in fee or any lesser estate, not to exceed in value $1,000, with the yearly products thereof, shall be exempt to the head of every family residing in this State from attachment, levy or sale,” &c. Section 2130 provides that: “No waiver of the right of homestead, however solemn, made by the head of a family at any time prior to the assignment of the homestead, shall defeat the homestead provided for in this chapter: Provided, however, That no right of homestead shall exist or be allowed in any property, real or personal, aliened or mortgaged, either before or after assignment, by any person or persons whomsoever, as against the title or claim of the alienee or mortgagee, or his, her or .their heirs or assignees” (italics ou'rs.) The legal title is unquestionably in the petitioner,W. M. Allison. Pom. Eq. Jur., vol. I., secs. 367, 368, 105; Id., vol. III., secs. 1260, 1261. The foregoing authorities also show that the legal title of the vendor in such cases may be conveyed or devised, and upon his death will descend to his heirs. The cases of Richards v. McKie et al., Harp. Eq., 184, and Bogert v. Perry, 17 John, 351 (referred to in Harp. Eq. as Rogers v. Perry), show that it is questionable, whether the vendor becomes a trustee for the vendee until payment of the purchase money in full. The agreement aforesaid was neither an “alienation” nor a “mortgage.” Hendrix v. Seaborn, 25 S. C., 481. And even if it could be regarded as either an “alienation” or a “mortgage,” the petitioner’s right of homestead would exist and be allowed against every one except DeLoach, his heirs or assigns. See Wood v. Timmerman, 29 S. C., 175; Martin v. Bowie, 37 S. C., 102. Not only will the law allow the debtor a homestead when he holds the legal title, but even when he has only an equitable title, to the property. Ency. of Law, vol. IX., page 425; Munroe v. Jeter, 24 S. C., 29; Ex parte Kurz, 24 S. C., 468. W. M. Allison has not only the legal title to the property, but he has a beneficial interest therein to the extent of $1,000 of the unpaid purchase money. To deny his right of homestead under such *344circumstances would be both against the letter and spirit of the Constitution and Statutes of our State relating to homesteads.
It is the judgment of this Court, that the judgment of the Circuit Court be modified, and that the case be remanded to the Court of Common Pleas for York County, for the purpose of carrying out the views herein announced.