Abbott v. Cromartie

• Decision Date: 31 January 1875
• Citation: 21 Am.Rep. 457,72 N.C. 292
• Court: North Carolina Supreme Court
• Parties: J. C. ABBOTT and F. W. FOSTER v. A. K. CROMARTIE.

21 Am.Rep. 457

72 N.C. 292

J. C. ABBOTT and F. W. FOSTER

v.A. K. CROMARTIE.

Supreme Court of North Carolina.

January Term, 1875.

A defendant, entitled to a homestead in certain lands, which have been sold under an execution against him, is not estopped from claiming his homestead, by accepting a lease for the same land from the purchaser at execution sale.

This right to a homestead is no defense however by the tenant to an action to recover the premises brought by the landlord. The tenant must wait until his term expires, before asserting his claim to the homestead.

( Wade v. Saunders, 70 N. C. Rep. 277; Calloway v. Hanby, 65 N. C. Rep. 631: Turner v. Lowe, 65 N. C. Rep. 413, cited, distinguished from this, and approved.)

CIVIL ACTION, in the nature of Ejectment, tried before Russell, J., at Spring Term, 1874, BLADEN Superior Court.

On the 24th October, 1868, judgment was rendered against the defendant in favor of Smith & Straus, and execution issued thereon to the sheriff of Bladen county.

In pursuance of this execution the land in controversy was sold, one Patrick L. Cromartie becoming the purchaser.

The defendant took from said Cromartie a lease of said land for three years.

While the lease was subsisting P. L. Cromartie sold the land to one J. E. Eldridge, who conveyed it to the plaintiffs. The lease having expired, this action was brought to recover the land.

The defendant claimed the land as his homestead. After the sale of the land by the sheriff and after the expiration of the lease, he had his homestead laid off and set apart.

The only issue submitted to the jury was “whether the defendant waived his right to the homestead in the land, at the time of the levy and sale.” The jury found the issue in the affirmative.

His Honor being of the opinion that the plaintiffs were not entitled to recover, gave judgment in favor of the defendant, whereupon the plaintiffs appealed.

R. H. & C. C. Lyon and W. McL. McKay, for appellants .

W. S. & D. J. Devane and Smith & Strong, contra .

BYNUM, J.

The plaintiffs do not deny that at the time of the execution sale, the defendant was entitled to a homestead in the land sold. It is an estate confirmed by the Constitution, Art. 10, sec. 2, and is not the subject of levy and sale under execution. The sheriff's deed therefore could pass to the purchaser only what he had the right to sell, i. e. the land, subject to the homestead estate. This much is clear. But it is alleged and not denied, that the defendant in the execution, who is also the defendant in this action, after the sale, accepted from the purchaser a lease for three years, and continued in possession under that lease until it expired. That he then continued in possession of part of the premises which he had had assigned to himself as a homestead, after the execution sale and the lease.

This acceptance of a lease from the purchaser it is contended established the relation of a landlord and tenant between the plaintiffs and defendant, and that the defendant is estopped from setting up a title to the land, adverse to that of the plaintiffs. To this the defendant answers, that if the execution, sale and deed did not have the effect of passing the title to the homestead, the acceptance of a lease afterwards could not have had that effect, for that an estate or interest in lands cannot be passed without a deed or writing, so that the title of the defendant was the same after, as before, the lease, the only effect of which was to estop him from denying the title of the purchaser, during the continuance of the lease. The plaintiffs reply to this, that the principles of estoppel extend farther...