Gheen v. Summey

• Decision Date: 31 January 1879
• Citation: 80 N.C. 187
• Court: North Carolina Supreme Court
• Parties: WARREN GHEEN and others v. R. R. SUMMEY.

80 N.C. 187

WARREN GHEEN and others

v.R. R. SUMMEY.

Supreme Court of North Carolina.

January Term, 1879.

MOTION for an Injunction heard at Chambers on the 6th of January, 1879, before Schenck, J.

The record shows that the plaintiffs obtained several judgments against the defendant on debts contracted prior to 1868, and executions were issued thereon and placed in the hands of J. H. King, sheriff of Lincoln county; that on the 19th of October, 1870, the said sheriff proceeded to summon appraisers to lay off and assign to the defendant his homestead and personal property exemptions; that the appraisers laid off and allotted them to him and made due return of their proceedings, and the defendant appealed to the township board of trustees, who again laid off and assigned to him his homestead and personal property exemptions; that the sheriff then proceeded to levy upon and sell by virtue of said executions all the real estate of the defendant in excess of the homestead so laid off and assigned to him; from all of which actings and doings there was no appeal taken by the plaintiffs or either of them; that recently other executions have been issued on said judgments and are now in the hands of the sheriff, and he has levied upon the land covered by the homestead, so laid off and set apart to the defendant, and has advertised the same for sale. Upon this state of facts set forth in the defendant's affidavit and not controverted, His Honor granted the injunction restraining the sheriff from selling the defendant's homestead, from which ruling the plaintiffs appealed.

Messrs. Wilson & Son and W. H. Bailey, for plaintiffs .

Messrs. Gray & Stamps, for defendant .

ASHE, J. (After stating the facts.)

The inquiry for us to make is, was there error in granting the injunction? and this involves the question, whether the homestead was liable to be sold under the executions?

It has been recently decided by the supreme court of the United States in the case of Edwards v. Kearzey, at the October term, 1877, carried by writ of error from this court, that the second section of article ten of the constitution, so far as it relates to pre-existing debts, is in violation of the constitution of the United States, Art. I, § 10, forbidding the states from passing any law impairing the obligation of contracts. The act then of the 7th of April, 1869, Bat. Rev., ch. 55, which was enacted for the purpose of carrying out the provisions of that section of the state constitution, must also be void, as against the same class of debts. A legislative act may be entirely valid as to some classes of cases, and clearly void as to others. Cooley Const. Lim., 218. The act of 1869, so far then as it provides the machinery for laying off and allotting the homestead against debts contracted prior to the 24th of April, 1868, the date of the adoption of the constitution, is void; but perfectly valid as to all contracts entered into subsequent to that date. Earle v. Hardie, ante, 177.

The court below held that the proceedings had by the appraisers and the township board of trustees in regard to the homestead of the defendant were res adjudicata, and worked an estoppel of record against the plaintiffs; and in support of the position relied upon the case of Spoon v. Reid, 78 N. C., 244. But on looking into that...