Baker v. Leggett

• Court: North Carolina Supreme Court
• Writing for the Court: Merrimon, J
• Citation: Baker v. Leggett, 4 S.E. 37, 98 N.C. 304 (N.C. 1887)
• Decision Date: 28 November 1887
• Parties: Baker v. Leggett.

4 S.E. 37

98 N.C. 304

Baker

v.Leggett.

Supreme Court of North Carolina.

November 28, 1887.

Homestead—Abandonment—Departure from State.

a resident in the state of Nortli Carolina mortgaged to the plaintiff his home-v stead, which was exempt from execution. The resident then left the state, and made his liome elsewhere, and execution was issued against him by a creditor, and the homestead was attached and conveyed to the defendant by the sheriff before the plaintiff's mortgage was registered. Held, that the exemption from execution secured to the homestead ceased when the resident removed from the state, and that the sherilFs deed had priority over the mortgage.

Appeal from superior court, Robeson county; Clark, Judge.

Frank McNeill and T. A. McNeill, for plaintiff

French & Norment, for defendant.

Merrimon, J. It appears that on the twenty-sixth of December, 1877, Addison Regan owned, and he and his family resided upon, the tract of land in question, situate in the county of Robeson; that it was all he had, and of value less than $500; that he was at that time indebted to the plaintiff by notes for considerable sums of money, and to secure the payment of such notes on the day mentioned, he and his wife executed to the plaintiff a mortgage of this land which was not registered until the twenty-third of January, 1878; that before the registration of this mortgage, the said Regan and his family removed from and ceased to be residents and citizens of this state, going to the state of Georgia, where they became citizens; that after they so removed on the seventeenth day of January, 1878, the defendant began his action against the said Regan before a justice of the peace, and in this action duly obtained a warrant of attachment, which on the same day was levied upon the land mentioned; that on the twenty-first of February, 1878, the plaintiff in that action, the present defendant, obtained judgment, which was regularly docketed in the superior court of the county named; that thereupon a venditioni exponas was issued, and the land so levied upon was sold by the sheriff' of the county mentioned, the present defendant becoming the purchaser, and taking from the sheriff a proper deed of conveyance therefor. The defendant is in possession of the land, claiming title thereto by virtue of the sheriff's deed mentioned. The plaintiff claims title to the same by virtue of the said deed of mortgage. He contends that the land was the homestead of the mortgagor, Regan; that he might execute a mortgage of the same, as he did; that the land was not subject to be levied upon to pay the defendant's judgment, because it was such homestead. The facts were agreed upon and submitted to the court for its judgment. The court, upon consideration, gave judgment for the defendant, and the plaintiff appealed to this court.

The right of homestead, provided and secured by the constitution, (article 10, §§ 2, 5, 8,) is incident to residence in this state. Only residents have and are entitled to it. A non-resident has no such right, although he may be the owner of real property situate in the state. The terms of the constitution do not embrace him, and moreover,...