Duplin County v. Harrell

• Citation: 142 S.E. 481,195 N.C. 445
• Decision Date: 04 April 1928
• Docket Number: 217.
• Parties: DUPLIN COUNTY et al. v. HARRELL et al.
• Court: North Carolina Supreme Court

142 S.E. 481

195 N.C. 445

DUPLIN COUNTY et al. v. HARRELL et al.

No. 217.

Supreme Court of North Carolina

April 4, 1928

Appeal from Superior Court, Duplin County; Harris, Judge.

Creditor's bill by Duplin County and others against J. F. Harrell and others. From a judgment for plaintiff G. B. D. Parker plaintiff O. C. Blanchard appeals. Affirmed.

The defendant J. F. Harrell owned certain lands in Duplin county and prior to the date of the judgment of G. B. D. Parker, and the deed of trust to O. C. Blanchard, executed various mortgages and deeds of trust on the said lands and had suffered several judgments to be taken against him, and this original action was in the nature of a creditor's bill to foreclose the various liens against the said J. F. Harrell including the payment of several years of taxes due Duplin county, and in said action it was ordered that his various tracts of land be sold and the moneys applied to the payment of the liens, according to their priority. The commissioner N. B. Boney, under the direction of the court, paid all of the liens down to the judgment of G. B. D. Parker, and paid into the clerk's office the sum of $558.76. It was admitted that the said fund was derived from the sale of the 60-acre tract of land included in the deed of trust for the benefit of O. C. Blanchard.

This is a motion in the original action made on affidavit of G. B. D. Parker, asking for an order of the court directing $558.76 to be paid to him on his judgment against J. F. Harrell, dated December 17, 1923. Balance due and owing on same is more than $800 in principal, and docketed in the office of the clerk of the superior court of Duplin county on the same date, this sum of money being derived from the sale of 60-acre tract of land on which J. F. Harrell, on the 12th day of November, 1925, executed a deed of trust to J. B. Cooper, trustee for the benefit of O. C. Blanchard, $1,346.15 and interest due and owing, which deed of trust was on the same day filed for registration in the office of the register of deeds of Duplin county.

J. F. Harrell is a single man, resident of the state, and owns no real estate. In the action to foreclose, in which he was made a party, he made no claim to homestead.

The court below, after reciting the facts in the judgment, held as follows:

"Upon the foregoing facts, the court is of the opinion that the plaintiff O. C. Blanchard is not entitled to hold any of the said $558.76, as the homestead of J. F. Harrell, as against said Parker's judgment, by reason of his mortgage on same as above. It is thereupon considered and adjudged that the said $558.76, now in the hands of the clerk of the superior court of Duplin county, be paid over to said G. B. D. Parker by said clerk to be credited in his judgment as above set forth, and that he recover of the said O. C. Blanchard his costs incurred of this motion to be taxed by the clerk."

O. C. Blanchard duly excepted, assigned error, and appealed to the Supreme Court.

Stevens & Beasley, of Kenansville, for Parker.

Gavin & Boney, of Kenansville, for Blanchard.

CLARKSON J.

[] The question presented for decision: Has G. B. D. Parker's judgment against J. F. Harrell, dated December 17, 1923, priority over the deed in trust of J. F. Harrell to J. B. Cooper, trustee, for the benefit of O. C. Blanchard, dated November 12, 1925? We think so.

In Wilson v. Patton, 87 N.C. 318, the land was sold under judgments for debts that antedated the Constitution of 1868. At page 320, it is said:

"But he [Patton] claims that he is entitled to $1,000 out of the proceeds of the sale of his land in lieu of his homestead, inasmuch as there will be $1,000 left after satisfying the executions on the judgments recovered upon debts which antedate the Constitution." [142 S.E. 482] At page 323:

"The defendant is entitled to his homestead against all the judgments, the executions upon which were in the hands of the sheriff at the time of the sale, except those in favor of P. F. Patton, administrator, Summey, administrator, and T. J. Lenoir. How then is the fund to be applied? Our opinion is, and we so decide, that in the first instance the sheriff shall reserve $1,000 for the homestead, and then apply the residue to the judgments according to the priority of their docketing; but as this will exhaust the fund before reaching the judgment in favor of T. J. Lenoir, as that is privileged against the defendant's right of homestead, it must be paid out of the thousand dollars reserved for the homestead, and the defendant will be entitled to what remains. But as he will be entitled to hold it only during his life, the remainder will be subject to the lien of the judgments as if it were land. The defendant may, if he shall choose to do so, give bond and security to such person as the judge of the superior court of Buncombe county may designate, to secure the return of the amount upon his death, to be applied to such judgment or judgments as shall remain unsatisfied according to priority of docketing, or a reference may be ordered by the judge of the superior court of Buncombe county to ascertain the value of the life interest of the defendant, Patton, in the residue of the $1,000, after satisfying the Lenoir judgment. But in ascertaining the value of his life interest, the homestead

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