Littlejohn v. Egerton
| Decision Date | 30 June 1877 |
| Court | North Carolina Supreme Court |
| Parties | J. B. LITTLEJOHN and wife v. C. J. EGERTON and others. |
OPINION TEXT STARTS HERE
MOTION in the Cause by plaintiffs to have homestead ascertained and for possession, heard at June Term, 1877, of THE SUPREME COURT.
The facts are stated in same case, 76 N. C. 468.
Messrs. Busbee & Busbee and A. M. Lewis, for plaintiffs .
Mr. J. B. Batchelor, for defendants .
At the last term we decided that the plaintiffs are entitled to a homestead; but it was held that judgment could not be rendered or a writ of possession issue, for the reason, that the homestead had not been assigned according to law; the assignment which the Sheriff attempted to make before he sold under execution being void for uncertainty, in this, that it does not describe the homestead by metes and bounds, or give any description by which it can be identified. See Grier v. Rhyne, 69 N. C. 346.
The case was retained for further directions under the expectation that the plaintiffs would take the necessary steps in order to have a homestead assigned by metes and bounds. The plaintiffs now move for an order of this Court to the Sheriff, commanding him to summon three appraisers and lay off a homestead according to law.
The complaint demands judgment that the plaintiffs be put into possession of so much of the homestead as can be identified; to-wit: “the dwelling-house and curtilage, and the land on each side of the road,” and that the assignment may be perfected as to the balance, by having the 200 acres ascertained by metes and bounds.
The assignment of a homestead if void in part is void in toto. The party is not at liberty to have possession of a part and ask to have the balance ““patched up.” So the plaintiffs now cut loose from the former assignment and ask to have a homestead assigned de novo. Can this Court make the order?
The Homestead Act, Bat. Rev. ch. 55, provides two modes of laying off the homestead; one, by the officer who levies an execution or other final process obtained on any debt, and the officer is required to summon three appraisers who are to lay off the homestead by metes and bounds; the other, upon the application of any resident of the State to a Justice of the Peace, who shall appoint three assessors whose duty it shall be to lay off a homestead by metes and bounds.
We see no ground on which this Court can lay off a homestead by an order to the Sheriff of the County, commanding him to have the homestead laid off by appraisers. It is suggested that the pendency of an action in which it becomes necessary that a homestead should be assigned, gives this Court power to have it done, as incident to its jurisdiction. We do not think so. The pendency of the action and the necessity for having a homestead assigned, gives the Court power to stay proceedings until the assignment can be made, but it does not give this Court power to have it done; for it is a Court of appellate jurisdiction, and to have a homestead assigned would be to assume original jurisdiction. The Homestead Act makes no provision for a case like the present, and yet there must be some remedy, for the plaintiff's right to a homestead was not extinguished by the fact that the land was sold under execution. When there is a right there is a remedy. The Sheriff cannot give the remedy, for having sold under the execution and made a deed, he is functus officio, and has nothing more to do in the matter.
Can the Justice of the Peace give the remedy? The Homestead Act, § 7, assumes that the debtor, who applies to a Justice of the Peace to have his homestead laid off, is in possession, so that section does not fit our case.
By § 11, the Justice of the Peace is required to give notice to the creditors. Here, the creditors have no longer any interest in the question. The purchaser at Sheriff's sale (and those claiming under him) is the only other party concerned save the party who is making claim to a homestead. So that section does not fit our case.
Ex parte Branch, 72 N. C. 106, was referred to as being in conflict with this view, and as tending to show that a Justice of the Peace has power to give the remedy. There, the debtor conveyed his land to a trustee to secure certain creditors, with an express exception of “so much of the land as may be laid off and assigned as a homestead under the Act of Assembly.” After his death the widow filed a petition before a Justice of the Peace to have a homestead laid off. The Justice of the Peace gave notice to the creditors who made themselves parties.
The Justice of the Peace decided in favor of the petitioner, the...
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... ... Hardie, 65 ... N.C. 447; Hager v. Nixon, 69 N.C. 108; Barrett ... v. Richardson, 76 N.C. 429; Littlejohn v ... Egerton, 77 N.C. 379; Gheen v. Summey, 80 N.C ... 187; Murphy v. McNeill, 82 N.C. 221; Adrian v ... Shaw, 82 N.C. 474; Wyche v ... ...
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Thomas v. Fulford
...it is not an estate, but only an exemption," and add to it the definition given by that great jurist Chief Justice Pearson in Littlejohn v. Egerton, 77 N.C. 384, "a homestead right is a quality annexed to land whereby an estate is exempt from sale under execution for debt," and "is not a pe......
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...execution,--nothing more, nothing less." Avery, J., in Hughes v. Hodges, supra, points out that Littlejohn v. Edgerton, 76 N.C. 468, and 77 N.C. 379, had misconceived, and that, while the learned chief justice had there spoken of the homestead as a "quality annexed to the land," he had imme......
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