Chadbourn Sash, Door & Lumber Co. v. Parker

• Decision Date: 06 October 1910
• Citation: 69 S.E. 1,153 N.C. 130
• Parties: CHADBOURN SASH, DOOR & LUMBER CO. v. PARKER et al.
• Court: North Carolina Supreme Court

69 S.E. 1

153 N.C. 130

CHADBOURN SASH, DOOR & LUMBER CO. v. PARKER et al.

Supreme Court of North Carolina

October 6, 1910

Appeal from Superior Court, New Hanover County; Lyon, Judge.

Proceeding by the Chadbourn Sash, Door & Lumber Company against C. E Parker and others. From a judgment for plaintiff on demurrer defendants appeal. Affirmed.

S. M Empie, for appellants.

Davis & Davis, for appellee.

CLARK C.J.

The plaintiff docketed a judgment against defendant Parker in New Hanover December 7, 1908. Subsequently said Parker and wife conveyed his lot in Wilmington, in said county, to the defendant Pae by deed which was duly registered January 20 1909. On January 30, 1909, execution issued upon plaintiff's judgment, whereupon the defendant Pae, who was in possession under his deed from Parker, demanded that Parker's homestead be allotted to said Pae. This the sheriff proceeded to have done over the plaintiff's objection. This is a proceeding against Parker, Pae, and the sheriff to have said allotment declared void, and to direct the sheriff to proceed to the sale of said lot under the execution in his hands.

The defendants move to dismiss on the following grounds: (1) That the plaintiff should have proceeded by a motion in the cause. But the defendant Pae and the sheriff were not parties to the original cause, and they are the parties to be affected by this proceeding. The defendant Parker has no interest to be affected, for all his interest in the land has been conveyed to the defendant Pae. In Formeyduval v. Rockwell, 117 N.C. 320, 23 S.E. 488, and Adrian v. Shaw, 82 N.C. 474, both relied on by the defendants, the proceeding for the same purpose as herein was by summons. But, if it could serve any material purpose to proceed by motion in the cause, the court would not dismiss this proceeding, but would treat it as a motion and the summons as a notice. Jarman v. Saunders, 64 N.C. 367. (2) That the plaintiff's remedy is by exception to the valuation and allotment. (3) That, this not being done, the allotment is res judicata. But these, as well as the first ground (above given), are based upon a misconception of this proceeding, which is not to call into question the allotment for erroneous valuation or irregularities under Revisal 1905, § 699, but to have the allotment declared null and void, because the lot was not "owned and occupied" by the defendant in the execution, and because the defendant Pae was not entitled to have Parker's homestead allotted to defendant Pae. (4) The last exception is that Parker's homestead in the land could be set apart and allotted to Pae. This presents the real question in the case.

Revisal 1905, § 686 (Laws 1905, c. 111), provides: "Conveyed homestead not exempt, when.--The allotted homestead shall be exempt from levy so long as owned and occupied by the homesteader, or by any one for him; but when conveyed by him in the mode authorized by the Constitution, article X section 8, the exemption thereof ceases as to liens attaching prior to the conveyance. The homestead right being indestructible the homesteader who has conveyed his allotted homestead can have another allotted, and as often as may be necessary: Provided, this does not have any retroactive effect." Leaving out unnecessary words, section 2 of article 10 of the Constitution, as applicable to this case, reads as follows: "Every homestead *** to be selected by the owner thereof *** owned and occupied by any resident of this state, and not exceeding the value of one thousand dollars, shall be exempt from sale under execution, or other final process on any debt." Clearly the Constitution intends that the homestead shall be exempt only from and after its selection by the owner, and then only such land shall be exempt as shall be owned and occupied by a resident of this state; so that, according to the true intent and meaning of the Constitution, land must be selected by the owner and allotted before it becomes exempt. But it must also be both owned and occupied by the homesteader, and this at the time of issuance of the execution. Certainly the defendant Parker was not entitled to have a homestead allotted in land which he had ceased to own and occupy, nor could he convey to Pae a right which he did not possess himself. Even if the homestead had been allotted to Parker before he conveyed to Pae, when thereby he ceased to be "owner and occupier," his right of homestead in that land ceased, just as it would if he had ceased to be a "resident of this state," which is the third qualification (in addition to "owner and occupier") required by the Constitution to entitle one to be a homesteader. Indeed, even when a homesteader has the above three qualifications, and the homestead has been allotted to him, the homestead may cease as to so much of the homestead as becomes in excess of $1,000 by reason of betterments or...