Mayho v. Cotton

• Decision Date: 30 June 1873
• Court: North Carolina Supreme Court
• Parties: JAMES M. MAYHO and JAMES H. PARKER v. B. W. COTTON.

69 N.C. 289

JAMES M. MAYHO and JAMES H. PARKER

v.B. W. COTTON.

Supreme Court of North Carolina.

June Term, 1873.

Before the Act of 1868, the owner of land was not restricted by the Constitution in the choice of his homestead to the tract upon which he resided, nor to contiguous tracts, but the same might have been assigned from any land of the required value.

CIVIL ACTION for the recovery of 900 acres of land, tried at the January (Special) Term, 1873, of HALIFAX Superior Court, before his Honor, Cloud, J., upon the facts contained in the following CASE AGREED:

“The sheriff of Halifax, under executions duly issued on sundry judgments against the defendant, B. W. Cotton, on the 6th March, A. D., 1869, after due levy and advertisement, (levy made subsequent to the adoption of the Constitution,) proceeded to sell at the Court House door in said county, the lands claimed in this action. At the said sale, the plaintiff, Parker, became the purchaser at the last and highest bid, and before the settlement with sheriff, transferred half interest in said land to the plaintiff, Mayho, and the sheriff's deed was, at the request of plaintiffs, made jointly to them, they paying the purchase money in full. The defendant, B. W. Cotton, who was defendant in said executions, was in the possession of the land when sold by the sheriff, and has been in possession ever since. On the day of sale, and before the sale was made, the plaintiff, Parker, and the defendant, Cotton, had a conversation just about the time of sale, in which Cotton said, that no one was bidding for the land in any way for his benefit or advantage and that he claimed nothing in this place; that he wished to save his other place, and proposed to borrow of Parker a small sum of money to aid in accomplishing that object; which, however, Parker did not loan him. This place, known as the “““Swamp Place,” was levied on at that time and advertised for sale, and was sold on the same day, and before the sale of the place mentioned in these proceedings. At the sale of the said “Swamp Place,” the defendant claimed to have the homestead laid off out of that place, and when the place now in controversy was sold by the sheriff, no such claim was made. The defendant had also proceeded by applications before one Wm. Fenner, a Justice of the Peace for said county, on the 2d day of March, 1869, to have his homestead laid off, and it was done on “Swamp Place,” and return thereof was made to the office of the clerk of the Superior Court, and duly recorded in the Register's office of said county, on the _____ day of _____, 186-, the said return being dated 4th March, 1869. The plaintiff was induced to bid at the sale by the said Cotton's saying to him that he claimed nothing in the place mentioned in this action, and by his claim of homestead in the “Swamp Place.”

The sheriff made a deed to the purchaser of the “Swamp Place” in fee, without reservation of homestead. The purchaser of said “Swamp Place” brought an action against the defendant, Cotton, to recover possession of said place. Cotton appeared and defended the action, and claimed that it was sold subject to his right of homestead in that tract. The suit was compromised between the said parties to that action by the parties thereto, on the payment by the defendant, Cotton, of a sum agreed on between said parties, as the consideration for the conveyance of said land to the defendant by the plaintiffs.

The defendant, Cotton, owned the said two tracts of land, which were four miles apart. His “Mansion House” and residence was at the time of said sale and for many years previous, and has been ever since, on the place claimed in this action. Defendant, Cotton, has a wife and several minor children living.

The defendant, Cotton, only claims a homestead in this tract, and offers to surrender the excess if any. The land mentioned in this action was purchased by said Parker for $2,060. He offered to sell the same to the defendant a few days after purchasing it, for $4000, which the defendant declined to give. A fair rent for the land in dispute is $125 per annum.”

Upon the foregoing facts, the Court being of opinion that the plaintiff was entitled to recover, gave judgment accordingly, and a further judgment against the defendant and his surety for the sum of $530 damages and for costs.

From this judgment, defendant appealed.

Clarke & Mullen, for appellant :

1. Homestead means dwelling-place, and every homestead must embrace the capital-mansion.

2. The husband cannot waive homestead except by deed in which wife joins. Mere words of judgment debtor on day of sale cannot have a force which would be denied his deed (without his wife's signature), supported by ample consideration.

3. Even admitting that the head of a family has a right to elect as a homestead a “swamp” or other place which is not his homestead, the case agreed shows he...