Lee v. Moseley

• Decision Date: 19 November 1888
• Citation: 7 S.E. 874,101 N.C. 311
• Parties: LEE v. MOSELEY.
• Court: North Carolina Supreme Court

7 S.E. 874

101 N.C. 311

LEE v. MOSELEY.

Supreme Court of North Carolina

November 19, 1888

Appeal from superior court, Sampson county; SHEPHERD, Judge.

Petition by defendant, A. A. Moseley, for an order setting aside a sheriff's sale, and for the appointment of commissioners to assign a homestead to defendant. Issues were submitted to a jury, and found in favor of plaintiff. From the judgment defendant appeals.

B. R Moore, for appellant.

W. R Allen and J. L. Stewart, for appellee.

SMITH C.J.

The plaintiff, having recovered judgment against the defendant in the court of a justice of the peace in the county of Sampson and caused it to be docketed in the superior court, sued out execution thereon, under which the tract or lot of the defendant was in July, 1887, sold and conveyed to the plaintiff, without assigning him a homestead. At the time of sale no claim was made thereto, but the defendant, according to the sheriff's return, then residing at Little River in South Carolina, was notified by mail of the sale. In February, 1888, the defendant applied by petition to the superior court, upon the allegations of fact therein contained, for an order setting aside the sale, and vacating the deed of the sheriff, and for the appointment of commissioners to lay off and assign him a homestead in the lot. Accompanying the petition is his affidavit, in which he says that he is a citizen and resident of this state, and that his removal to South Carolina was for a definite period of time, with no intent to make that his permanent home, but to return; and that such is his present purpose, after a short sojourn. Notice was given to the plaintiff of an intended motion to this effect, to be made before the judge on March 2, 1888. At April term, 1888, the application was heard, and a single issue submitted to the jury, to-wit, was the petitioner, A. A. Moseley, a resident of the state of North Carolina on July 4, 1887? The testimony of the defendant was offered in support of an affirmative finding, and was to this effect. "I was born and raised in Sampson county. Resided in New Hanover on July 4, 1887, and reside there now. I own no real estate, except this described in the petition. I owned this in July, 1887." Upon cross-examination he testified as follows: "I am fifty-three years old. Have a wife and one child. Left them in Horry county, S. C., last Sunday. She went there on the 17th of February, 1887. My child is seventeen years old. My wife has two other children, who are of age. One of them is in New Berne, and the other is with her. She owns about three thousand acres of land in South Carolina, and is living on other land in which she has an interest. I am farming on the 3,000 acres. I made a general crop on the same last year, and superintended its cultivation. I am cultivating also the land on which she lives. I went over to South Carolina when she did; and carried horses, mules, furniture, and farming implements. I left some of the furniture in New Hanover, but no beds. I left one-half dozen stool chairs, and some other things, inconvenient for me to carry, some carts, and a few hogs. I came back to Wilmington, N. C., two or three times, and got some supplies for my farms in South Carolina. I did my trading in Wilmington, N. C., and went down to see the party I left on the New Hanover place. There was a division of the land in South Carolina three years ago, and my wife's share was 3,000 acres or more. There is a part still undivided, in which my wife has an interest, and on this we live. These farms were rented, and were going down when the division was made. There was only a small house on my wife's draw. I couldn't find any one to take it in charge as it was. It was idle the year 1886. I told my wife there was only one way to do with the property, and that is to go and move to South Carolina; that I could fix the place in two years so as to get rent. I told numerous parties before I left that I was going to move to South Carolina. I left South Carolina last Sunday to come here to this court. I have crops on both places in South Carolina for the present year. I was confident I could fix the place in about two years. I expected to return in the winter of 1888, and I still expect to return and make my residence in North Carolina. I have never intended to change my residence. I was a justice of the peace in New Hanover, July 4, 1887. I haven't tried a case since I left for South Carolina, and have not transacted any business as a justice of the peace." The counsel for petitioner asked the court to instruct the jury as follows: "That if the defendant left New Hanover county to go to South Carolina for the purpose of remaining there for a definite period, to-wit, for the period of two years, and at the time of such removal he intended to return at the expiration of such period, and that he did not at any time intend to change his residence except for the foregoing purpose, then the defendant was an actual resident of New Hanover." The court declined to give this instruction, but gave the following: "If in February, 1887, the petitioner, Mosely, moved with his family to South Carolina for the purpose of cultivating his wife's land there, and to make it his home until he got the property there in order, which he thought would take about two years, and then return to North Carolina, and he has so lived in South Carolina ever since, and is now living there, making that his actual home, returning to Wilmington only two or three times a year to purchase supplies for his operations in South Carolina, and looking after some property he had left in New Hanover county, then you'll find that he was not a resident within the meaning of this issue." The jury answered the issue, "No." The petitioner moved for a new trial. Motion overruled. Judgment. Appeal prayed. Notice of appeal waived. Appeal granted, and bond fixed at $25. The foregoing case agreed by counsel.

The constitution of the state confers a right of homestead in land which shall be for a limited time exempt from execution or other final process obtained on any debt, with the dwelling and buildings used thereon, "owned and occupied by any resident of this state," not exceeding $1,000 in value, (Const. art. 10,§ 2;) and the only inquiry the appeal requires us to make is as to the correctness of the construction put upon the words, "a resident of this state," by the judge in his charge to the jury. We think it clear that the constitution does not contemplate a double or divided residence in different states, so that, if a similar exemption is provided in each, a party can have his exemption allotted to him in both. The preceding qualifying words limiting the claim to a lot "occupied" as well as "owned" by a resident, forbids its assertion in a case like the present, where all the facts outside of the defendant's declared intent, point to an absolute and permanent removal. Can there be any doubt that a person removing, under like circumstances, from South Carolina into this state, with his family and domestic implements and furniture, into a dwelling on land of his wife which he cultivates for two successive years, would thereby become a resident, entitled to all the rights incident thereto; or, if the removal was to other land of his own, such occupation would not secure to him a homestead therein of which a creditor could not deprive him? If he would thus acquire a right to an exemption in the state to which he goes, of necessity he loses it in the state from which he removes; for, under similar laws, he would not have it in both. So,...