Garrett v. Chesire

• Decision Date: 30 June 1873
• Citation: 69 N.C. 396,12 Am.Rep. 647
• Court: North Carolina Supreme Court
• Parties: JOHN H. GARRETT v. JAS. O. CHESIRE.

69 N.C. 396

12 Am.Rep. 647

JOHN H. GARRETT

v.JAS. O. CHESIRE.

Supreme Court of North Carolina.

June Term, 1873.

The homestead laws of North Carolina do not impair the obligation of contracts, and are not unconstitutional.

( Hill v. Kessler, 63 N. C. Rep., 437; McKeithan v. Terry 64 N. C. Rep. 25, cited and approved.)

CIVIL ACTION for the delivery of personal property, tried before Watts, J., at the Spring Term, 1863, of CHOWAN Superior Court.

On the 10th May, 1871, certain executions issued against the plaintiff from Chowan Superior Court, on debts contracted since the adoption of the Constitution in 1868. The property in controversy with other property, including a horse, was claimed and allotted to the plaintiff as his “personal property exemption,” under the 10th article of the Constitution, and the Acts of the General Assembly relating thereto, and the said executions were returned endorsed, “nothing to be found.” On the 20th May, 1871, the same property was sold under an execution from the United States Circuit Court, at Raleigh, for a debt contracted in 1867, at which sale defendant purchased the property and was placed in possession thereof by the Marshal.

On the 21st of May, 1871, plaintiff served the defendant with the affidavit and bond in this cause, and the property was taken by the sheriff from defendant and delivered to plaintiff. About two hours after that a copy of the summons was served on the defendant, the original having been filed with the Clerk.

Defendant appeared and moved to dismiss the action because it was not properly instituted. Motion refused, and defendant excepted.

Upon the trial, the defendant asked the Court to charge that the property in controversy was liable to the execution from the United States Court, and the seizure and sale by the Marshal, under which defendant claimed, was valid. His Honor decline to charge as prayed, whereupon defendant again excepted.

Verdict and judgment for the plaintiff, from which defendant, after an ineffectual motion for a new trial, appealed.

A. M. & J. A. Moore, for appellant .

Gilliam & Pruden, contra .

READE, J.

The complaint alleges that on the 3rd of June, 1871, the plaintiff “was the owner and in possession of one bay horse and one black mule, of the value of $300; that on that day the defendant unlawfully took the same from his posession and converted them to his own use.” There is nothing else alleged in the complaint.

The answer, after objecting to the want of a summons, “denies all the allegations in the complaint.” There is nothing else in the answer.

The case states that the property in controversy had been allotted to the plaintiff, as his personal property exemption as against certain executions which were issued against him from Chowan Superior Court on debts contracted since the ratification of the Constitution; and thereupon the executions were returned to court, endorsed, “nothing to be found.” This is of no importance in the case, and we suppose it was stated only to explain why the allotment had been made.

It is further stated as follows: “On the 20th of May, 1871, the same property was sold under an execution from United States Circuit Court at Raleigh, for a debt contracted and due in 1867, at which sale the defendant purchased and was placed in possession by the Marshal.”

It is further stated that, “upon the trial the defendant asked the Court to charge that the property in controversy was liable to the execution from the United States Circuit Court, and the seizure and sale by the Marshal under which he claimed were valid.”

The Court refused so to charge. The Jury found the issues for the plaintiff, and the defendant appealed.

Having only appellate jurisdiction, it is plain that we are confined to the record; and that we can know no fact which is not stated, and can decide no point which is not raised, and must sustain his Honor unless error is shown. The only error alleged is the refusal of his Honor to charge that the property in controversy was liable to the execution from the United States Court, and that the sale by the Marshal was valid. His Honor must be sustained unless we can see that the execution and sale were regular and valid. Now, if there can be such a thing as an invalid execution, we are to take it that this was invalid. It is true that it is stated that it issued upon a debt due in 1867, and if we assume what is not stated, that it was a debt due from the plaintiff, still it is not stated that there ever was any judgment upon the debt, in any court, at any time. And if there was a judgment, it is not stated whether it was alive or dormant, or whether it was against the plaintiff or some other person, or whether it was issued to the Marshal, or what was its form or substance, or whether the levy and sale were regular. Surely we cannot say upon such a skilfully observed state of facts, that the defendant was entitled to the charges asked for.

And his Honor could not assume that there was a regular judgment and execution, without assuming what ought to be improbable, that an inferior United States Court sitting in North Carolina, would subject the property of its citizens to sale, when the highest Court in the State had repeatedly decided it was not subject to sale.

It was stated at the bar by the counsel on both sides that a recent decision of the Supreme Court, ( Gunn v. Barry) which went up from Georgia, was supposed to be in conflict with Hill v. Kessler, 63 N. C. Rep., and several subsequent cases in this Court in regard to our homestead laws; and that it is of great importance to the public, as well as to those parties, that this Court should reconsider Hill and Kessler. If it were true that the United States Supreme Court had decided the principles laid down in Hill v. Kessler contrary-wise thereto, we should make haste to conform our decisions to the decisions of the United States Supreme Court, because in all cases within its jurisdiction that is the highest Court, and the proper administration of justice and the true principles of our government, and the good order of society and the comity of courts, require subordination. We have not been furnished with an authenticated copy of the opinion in the case of Gunn and Barry and have seen only the newspaper report, which we presume to be correct. I have considered it carefully, and I do not think it is in conflict with Hill and Kessler, or with any other decision of this Court. On the contrary, it is in exact conformity with our decisions. If there is anything seemingly in conflict it is only a dictum which bind neither that Court nor us. The facts in Gunn and Barry were, that at the time when the Georgia homestead laws were passed Gunn not only had a debt against this debtor, but had sued him, and obtained a judgment against him, which judgment was a lien upon the debtor's land and thereby Gunn had a vested right in the land, which the homestead laws could not divest. And therefore the United States Supreme Court, in its opinion well says: “The effect of the Act in question, (the Georgia homestead Act) under the circumstances of the judgment, does indeed not merely impair, it annihilates the remedy. There is none left. But the Act goes still further. It withdraws the land from the lien of the judgment, and thus destroys a vested right of property, which the creditor had acquired in the pursuit of the remedy to which he was entitled by the law as it stood when the judgment was recovered. It is in effect, taking one person's property and giving it to another without compensation.” This principle was expressly conceded by us in Hill v. Kessler; and was expressly decided by us in McKeitham v. Terry, 64 N. C. Rep., p. 25, and was the only point in that case. And subsequently we decided that where there was the lien of a trust deed the homestead law did not operate.

It is true that it is not only decided in Gunn v. Barry that vested rights were effected in that case, but it is also said that the Georgia homestead laws impair the obligation of contracts, and are therefore void. It is also conceded in Hill v. Kessler, and in all cases in our Court, that if our homestead laws impair the obligations of contracts, they are void, but our cases are all put upon the ground that our homestead laws do not impair the obligations of contracts. And it may very well be that the Georgia homestead laws do impair contracts, while North Carolina homestead laws do not. They are not at all alike. In order to show that the Georgia homestead laws do impair the obligation of contracts, the learned Judge in his opinion copies the Georgia exemption laws prior to the present homestead laws to show that they were very small--land not exceeding $200 in value, and personal property of small amount, and then he copies the homestead exemptions to show that they...