Before WILSON, J., Anderson, December, 1916. Reversed.

Action by S. Zemurray against J. K. Menos. order of nonsuit, plaintiff appeals.

From an

Messrs. Bonham, Watkins & Allen, for appellant, cite: As to construction of contract: 78 S. C. 5; 89 S. C. 80. Question of law: 67 S. C. 34; 93 S. C. 537.

Mr. S. M. Wolfe, for respondent, cites: As to offer and acceptance: 9 Cyc. 246, 256, 258; 26 S. C. 258 and 610; 2 DeS. 389; 9 S. E. 689. Burden of proof: 9 Cyc. 757, 741. Acceptance after inspection: 67 S. E. 738; 69 S. E. 881; 58 S. E. 806.

Mr. A. H. Dagnall, also for respondent.

June 29, 1917.

The opinion of the Court was delivered by MR. JUSTICE WATTS.

This was an action to collect the price for a carload of bananas shipped by plaintiff to the defendant, and alleged by the plaintiff to have been purchased by the defendant on September 2, 1915. The defendant by his answer pleaded a general denial, a breach of warranty, and failure of consideration, a noncompliance on the plaintiff's part with the terms of the order if there was any order and nonacceptance, rescission, and disclaimer of any responsibility on the part of defendant.

The cause was tried before Judge Wilson, and a jury, at the Fall term of Court, 1916, for Anderson county, and at the close of plaintiff's testimony a motion for a nonsuit was made by the defendant, which motion was granted by his Honor. From the order of nonsuit plaintiff appealed, and

by three exceptions alleges error and seeks reversal. These exceptions raise the questions: Was there a contract between the parties? and, if so, should the question of contract or no contract be answered by the Court or by the jury? The evidence in the case shows that the whole transaction between the parties was negotiated by telegraph, and it also discloses that the relation of seller and purchaser had existed between the parties for at least three years. We are of the opinion that taking the three telegrams and construing them together that there was sufficient evidence to go to the jury for them to determine whether there was a contract by which plaintiff agreed to sell and defendant agreed to buy the bananas in question, and his Honor was in error in granting the nonsuit. Taking the three telegrams and the evidence of prior relations of the parties with their dealings with each other and the subsequent actions of the parties adduces some evidence for the jury to determine whether there was a contract and whether there was a meeting of their minds in the negotiations between them that culminated in a complete contract between them.

The evidence in the case is susceptible of more than one inference. The telegrams in the case are not the only evidence in the case, but there are other facts and circumstances in the case that should be taken in connection with the telegrams. "The general rule is that it is the province of the Court to construe written instruments; but it is equally well settled that where the effect of the instrument depends not merely on its construction and meaning, but upon collateral facts and extrinsic circumstances, the inference of fact to be drawn from the paper must be left to the jury." West v. Smith, 101 U. S. 263, 25 L. Ed. 809, quoted with approval in Watson v. Paschall, 93 S. C. 537, 77 S. E. 291.

Exceptions sustained. Order appealed from reversed.

Order on Circuit.

9715

EX PARTE BEATY ET AL.

ZONE OIL CO. ET AL. v. BEATY.

(92 S. E. 1052.)

[ 107 S. C.

HOMESTEAD RIGHT OF TENANT IN COMMON.-A tenant in common is entitled to a homestead to the amount of $1,000, although it cannot be allotted to land set off by metes and bounds, which is not subject to execution and cannot be invaded by legal process; as the homestead right is in the title.

Before WILSON, J., Union, November, 1915. Modified.

Action by the Zone Oil Company and others against Sue F. Beaty. On petition by Mrs. Sue F. Beaty and another to restrain a judicial sale. From an order granting the injunction, the Zone Oil Company and others appeal.

The chambers order of Judge Wilson, referred to in the opinion, is as follows:

The above stated case was heard before me this 26th day of November, 1915, after hearing arguments for petitioners and respondents. It is ordered, that the sheriff of Union county, said State, be enjoined and he hereby is enjoined, from selling the interest of Mrs. W. A. Beaty, one of the petitioners herein on sales day in December next, or at any time thereafter, in the tract of land situate in county of Union, said State, containing 401 acres, more or less, and known as the "Home Tract," levied on as the property of Mrs. W. A. Beaty at the suit of Dr. F. M. Durham, Zone Oil Company, and Childs & Edwards, plaintiffs, against Mrs. W. A. Beaty, defendant, and duly advertised for sale by the said sheriff of Union county, State aforesaid.

Mr. John K. Hamblin, for appellants, cites: 26 S. C. 229, 230; 28 S. C. 133; 32 S. C. 454.

Messrs. J. F. Walker, Jr., and Barron & Barron, for respondents.

The opinion of the Court was delivered by MR. JUSTICE GAGE.

Without a long recital, the record discloses that Mrs. Sue F. Beaty, a widow with children, and her brother, J. D. Crawford, own as tenants in common a parcel of land containing 401 acres. The record is not plain about the shares in which the title is held. One of the affidavits puts the share of Mrs. Beaty less than one-fourth.

Upon the land there are sundry liens: First, there are alleged judgment liens of Zone Oil Company, of F. M. Durham and Childs and Edwards; and, second, there are mortgages aggregating $4,200 in round figures.

The judgment creditors proceeded to levy on and advertise for sale the undivided title of Mrs. Beaty in order to satisfy their alleged liens.

On motion of Mrs. Beaty made before Hon. John S. Wilson, Circuit Judge, at his chambers, Judge Wilson made an order permanently enjoining those judgment creditors from their procedure. (The order will be reported.) This appeal is from that order: (1) Because Mrs. Beaty "is not entitled to a homestead in land owned as tenant in common;" (2) because "homestead cannot be allotted in lands where the land cannot be set off by metes and bounds;" (3) because "the judgments ** are senior liens on the interest of Sue Beaty and prior liens to any mortgage." The order is not challenged upon the ground that it is a final order in its very terms.

The only questions made are those above indicated. And there is in fact but one question to be decided, and that is: Did the charmed homestead circle lay around Mrs. Beaty's title? for if it did, there was no lien upon it, for liens do not attach to the homestead at all, and if there was no lien the question of priority is not involved.

It is true that when the claimant's title is wrapped up in common with another title, it is impracticable to stake off on

Opinion of the Court.

[ 107 S. C. the ground a parcel of land the undivided title of which shall belong to only one of such two persons. That is all the cases have decided. But this case presents no such issue. It has never been decided in this jurisdiction that because a claimant's title is not singular, but is common, that it is not protected by the Constitution from alienation by execution sale.

The homestead right is in the title, and that is as visible to the legal eye when manifested by itself as when entwined with the title of another, and, being visible, it is exempt; it may not be invaded by legal process. It would be a curious application of the homestead law which protected from sale the single title of A in a town lot worth $1,000, and which denied protection to A's interest in a like town lot owned by him and B in equal shares. Yet that is the contention of the appellant.

The widow has a right in the title in issue, so much of it as is worth $1,000, which cannot be alienated by the sheriff; and the creditor may not alienate the widow's title in the whole parcel for the reason that it is not single. See Gibbes v. Hunter, 99 S. C. 410, 83 S. E. 606. Nevertheless a judgment creditor ought not to have his hands permanently tied towards collecting his debt by a proper process and procedure, nor shall the Circuit order so tie them. The statutes prescribe how a creditor may proceed against a homestead debtor; and these judgment creditors may yet so proceed. And if the judgment is of such a character as homestead may not be claimed against it, that fact may be shown in a proper proceeding. All we decide is that the sheriff was not warranted in proceeding by execution to sell in the way he was proceeding.

The order below is so affirmed and so modified.