Cheek v. Walden

• Decision Date: 06 June 1928
• Docket Number: 503.
• Citation: 143 S.E. 465,195 N.C. 752
• Parties: CHEEK v. WALDEN et al.
• Court: North Carolina Supreme Court

143 S.E. 465

195 N.C. 752

CHEEK v. WALDEN et al.

No. 503.

Supreme Court of North Carolina

June 6, 1928

Appeal from Superior Court, Randolph County; Webb, Judge.

Suit by C. C. Cheek against M. R. Walden and another. Judgment for defendants, and plaintiff appeals. Reversed.

See also, 193 N.C. 744, 138 S.E. 13.

The court below found the following facts:

"(1) That at July term, 1926, of Randolph county superior court the defendant M. R. Walden obtained judgment against the plaintiff, C. C. Cheek, for the sum of $200, as will appear on Judgment Docket Book 24, page 13, in the office of the clerk of the superior court of Randolph county; that said judgment was docketed within ten days of said term of court, and was from that time a lien on the real estate of C. C. Cheek, situated in Randolph county.

(2) That at March term, 1927, of said superior court of Randolph county, the defendant J. J. Harper recovered judgment against plaintiff, C. C. Cheek, for the sum of $330, together with costs, which said judgment was duly docketed in the superior court of Randolph county, within ten days of the adjournment of said term, in Judgment Docket Book 24, page 81, and the same was a lien on the land of C. C. Cheek, situated in Randolph.

(3) That thereafter, and while said judgments were a lien on the real estate of C. C. Cheek in Randolph county, the said C. C. Cheek and wife Annie Cheek, on the 2d day of May, 1927, executed and delivered to the Bank of Ramsuer a mortgage deed on the land described in the complaint, which is situated in Randolph county, for the sum of $2,300, and said mortgage deed was recorded on the 12th day of May, 1927, in the office of the register of deeds for Randolph county, in Book 229, pages 143-144.

(4) That said mortgage deed was executed according to the laws s of the state of North Carolina, and the private examination of Annie Cheek, wife of C. C. Cheek, was duly taken.

(5) That on the 10th day of December, 1927, the defendants W. R. Walden and J. J. Harper issued executions against the plaintiff on the aforesaid judgment for the amount specified in said judgments, and delivered said executions to the sheriff of Randolph county.

(6) That J. A. Brady, sheriff of Randolph county, levied on the lands of C. C. Cheek, by virtue of said executions, it being the same land that is described and contained in the mortgage deed aforesaid, from C. C. Cheek and wife, Annie Cheek, to the Bank of Ramsuer, on the 2d day of May, 1927, hereinbefore referred to, and advertised the same for sale on the 6th day of February, 1928, at the courthouse door in Asheboro, N. C., and is attempting to sell said land without allotting the homestead or personal property exemptions of the said C. C. Cheek. That on the 29th day of December, 1927, the plaintiff brought this action and restrained the defendants from selling said lands without allotting the homestead or personal property exemptions of plaintiff, C. C. Cheek, and demanding that the sheriff of Randolph county be required to allot the homestead and personal property exemption of the plaintiff. That no homestead has heretofore been allotted to C. C. Cheek.

It is therefore considered, ordered, and adjudged that the restraining order heretofore issued against the defendants in this cause be, and the same is hereby, dissolved."

C. N. Cox and Brittian, Brittian & Brittian, all of Asheboro, for appellant.

Hammer & Wilson, J. A. Spence, and H. M. Robins, all of Asheboro, for appellees.

CLARKSON J.

The plaintiff, a resident of the state, owns certain real property. Judgments are taken by defendants against him and duly docketed on the judgment docket of the superior court of the county in which the land is situate, which became a lien on his real property, under C. S. § 614. Thereafter he and his wife, in accordance with law, made a mortgage on the land. No homestead has heretofore been allotted to plaintiff. Can plaintiff claim a homestead in the equity of redemption? We think so.

Const. of N.C. art. 10, § 2, is as follows:

"Every homestead, and the dwellings and buildings used therewith, not exceeding in value one thousand dollars, to be selected by the owner thereof, or in lieu thereof, at the option of the owner, any lot in a city, town or village, with the dwelling and buildings used thereon, 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 obtained on any debt. But no property shall be exempt from sale for taxes or for payment of obligations contracted for the purchase of said premises."

Article 10, § 8:

"Nothing contained in the foregoing sections of this article shall operate to prevent the owner of a homestead from disposing of the same by deed; but no deed made by the owner of a homestead shall be valid without the voluntary signature and assent of his wife, signified on her private examination according to law." The material part of C. S. § 728:

"The homestead and personal property exemptions as defined and declared by the article of the state Constitution entitled "Homesteads and Exemptions" are exempt from sale under execution and other final process, as provided in the state Constitution: Provided, the allotment of the homestead shall, as to all property therein embraced, suspend the running of the statute of limitations on all judgments against the homesteader during the continuance of the homestead," etc.

C. S. § 729:

"The allotted homestead is 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 ten, section eight, the exemption ceases as to liens attaching prior to the conveyance. The homesteader who has conveyed his allotted homestead may have another allotted, and as often as is necessary. This section shall not have any retroactive effect."

C. S. § 730, in part:

"Before levying upon the real estate of any resident of this state who is entitled to a homestead under this article, and the Constitution of this state, the sheriff or other officer charged with the levy shall summon three discreet persons qualified to act as jurors, to whom he shall administer the following oath," etc.

C. S. § 731: Duty of Appraisers; proceedings on return. C. S. § 732: Reallottment for increase of value. C. S. § 733: Appeal as to reallottment C. S. § 734, provides for levy on excess of the homestead. C. S. § 735, provides if selection is not made by the owner, or any one acting in his behalf, appraisers shall make selection for him "including always the dwelling and buildings used therewith."

It is well settled that the homestead may be allotted in an equity of redemption. Cheatham v. Jones, 68 N.C. 153; Gaster v. Hardie, 75 N.C. 460; Burton v. Spiers, 87 N.C. 87; Hinson v. Adrian, 92 N.C. 122; Thurber v. La Roque, 105 N.C. 301, 11 S.E. 460; Montague v. Bank, 118 N.C. 283, 24 S.E. 65; Duplin County v. Harrell, 195 N.C. 445, 142 S.E. 481.

In Cheatham v. Jones, supra, at page...