Davenport v. Fleming

• Decision Date: 08 March 1911
• Citation: 70 S.E. 472,154 N.C. 291
• Parties: DAVENPORT v. FLEMING.
• Court: North Carolina Supreme Court

70 S.E. 472

154 N.C. 291

DAVENPORT v. FLEMING.

Supreme Court of North Carolina

March 8, 1911

Appeal from Superior Court, Pitt County; G. W. Ward, Judge.

Action by James R. Davenport against Joseph Fleming. From a decree dissolving a restraining order, plaintiff appeals. Affirmed.

Prior to the docket of a judgment, the debtor conveyed certain land in trust for creditors reserving his homestead. After the conveyance the homestead was allotted, and the trustee sold the land except the homestead, and also the reversion after the homestead had terminated. Held that, since the homestead is a mere exemption right not affecting the general power of alienation, a judgment subsequently docketed against the debtor conferred on the creditor no lien or other interest in the homestead.

Civil action, heard on return to a preliminary restraining order before his honor, G. W. Ward, judge, at September term, 1910 superior court, Pitt county. On the hearing the relevant facts and disposition of the cause in the court below were made to appear as follows:

"This cause came on to be heard at the September civil term 1910, of Pitt county superior court, before Honorable G. W Ward, judge presiding, on a motion by the defendant to dissolve the injunction heretofore granted in this case on the complaint and answer filed in the cause, and after reading the pleadings and taking into consideration the admissions of record, and after a full argument by defendant's counsel to dissolve the injunction and plaintiff's counsel to continue the injunction, it is found by the court as being admitted in the pleadings:

"(1) That Joseph Fleming, the defendant, on the 28th of October, 1892, as appears of record in book M-5, p. 253, in the register of deeds' office of Pitt county, conveyed the lands therein described to one Lumsford Fleming to secure creditors, and in the said deed of trust said defendant, Joseph Fleming, reserved his personal property and homestead exemption to be set apart, etc.

"(2) That on the 12th day of December, 1892, the homestead of the defendant was duly allotted and set apart to him by metes and bounds as set out in the complaint.

"(3) That Lumsford Fleming, exercising the powers contained in the deed of trust of October, 1892, on the 29th of April, 1893, sold the lands conveyed in the said deed of trust before the courthouse door at Greenville, N. C., at public sale, as follows: (1) The reversion in that portion of the land which had been allotted to Joseph Fleming as a homestead: (2) all of said land conveyed in the said deed of trust except the homestead. At which sale Isabella Fleming, wife of the defendant, Joseph Fleming, became the purchaser, both of the reversion to the homestead and of the lands outside of the homestead, receiving a deed on the 29th of April from Lumsford Fleming, trustee, first, for the reversion of the homestead, and, second to all the lands conveyed in the deed of trust aforesaid outside of the homestead, which deed was duly recorded and regularly admitted to registration in Pitt county.

"(4) That the plaintiff recovered the judgment as set out in the complaint January 28, 1893, and at March term of Pitt superior court, 1898.

"(5) That it is admitted in the pleadings that the defendant, Joseph Fleming, has cut timber from the lands included in the boundaries of the homestead as allotted, but his answer asserts that he cut the timber by the authority and under the direction of Isabella Fleming, owning the reversion to the homestead, and this is not denied; and that as a matter of law the defendant asserts that the judgment as set forth in complaint of plaintiff have never attached as a lien on the reversion to said homestead.

"On these admitted facts in the record, the court holds, as a matter of law, that Mrs. Isabella Fleming is the owner of the reversion to the homestead; that the judgments set out in the complaint never attached thereto; and that the plaintiff has no lien thereon for which he can ask a protection of his security. It is therefore, on motion, adjudged and decreed that the restraining order in this case heretofore issued be dissolved.

"The plaintiff having intimated that he would take the case to the Supreme Court, it is agreed that the defendant be restrained from cutting timber upon said land until after a decision of the Supreme Court in this cause. G. W. Ward, Judge Presiding.

"Plaintiff appeals to the Supreme Court; notice waived, and bond fixed at $25.

"Ward, Judge.

"By consent, timber not to be cut till case is reviewed by Supreme Court.

"Ward, Judge."

Jarvis & Blow, for appellant.

Harry Skinner, for appellee.

HOKE, J. (after stating the facts as above).

In Fulp v. Brown, 153 N.C. 533, 69...