Mebane v. Layton
| Decision Date | 31 October 1883 |
| Citation | 89 N.C. 396 |
| Parties | W. N. MEBANE v. DANIEL LAYTON and others. |
| Court | North Carolina Supreme Court |
OPINION TEXT STARTS HERE
EJECTMENT tried at Spring Term, 1883, of GUILFORD Superior Court, before Gilmer, J.
The plaintiff appealed from the judgment of the court below.
Messrs. Scott & Caldwell, for plaintiff .
Mr. James T. Morehead, for defendants .
The facts stated in the record in this action are meagre and indefinite. Necessary facts should always be stated with care and precision.
It appears that on the 9th day of November, 1878, W. N. Mcbane obtained before a justice of the peace in Guilford county, a judgment against Charles Layton for the sum of $11.09, and for costs, and duly docketed the same in the superior court of that county; that thereupon, sometime before the year 1881, an execution was issued, and the sheriff levied upon and sold the land specified in the complaint as the land of the defendant in the execution, the plaintiff being the purchaser at the price of one dollar, and taking the sheriff's deed therefor.
The defendant in the execution was, at the time of the taking of the judgment and the sale, a resident of this state; the land sold was all that he owned, and it was of the value of $150.
At the time of the sale, and at the time of his death, which took place in the year 1881, before this action was brought, he had no wife, she having died before the sale; and at his death, all his children were over the age of twenty-one years.
This action was brought by the plaintiff, the purchaser of the land, to recover possession thereof against the defendants, who are the heirs-at-law, including the administrator of the said Charles Layton, deceased, and he claims title by virtue of the sheriff's deed.
The defendants insist that the land was the homestead of the said Charles Layton, their ancestor, and was not subject to levy and sale under said execution, and therefore, the deed passed no title to the plaintiff. The court so held, and the plaintiff excepted.
The plaintiff insisted that the debt upon which the judgment was founded was contracted prior to the present state constitution, and therefore, the defendant in the execution was not entitled to have a homestead, as against this judgment.
There was no evidence offered to show when the debt was contracted. The court held, in the absence of such evidence, that it was contracted as of the date of the judgment, and the plaintiff excepted.
The court gave judgment for the defendants, and the plaintiff appealed to this court.
The constitution, article ten, section two, provides that “every homestead * * * shall be exempt from sale under execution, or other final process obtained on any debt,” with three exceptions; first, it is not exempt from sale under such process, for taxes; secondly, nor for payment of obligations contracted for the purchase of the land comprising the homestead; thirdly, nor from the payment of debts secured by a laborer's or mechanic's lien.
There is also a fourth exception: it is settled by judicial authority, that it may be sold under such process, to pay any debt contracted anterior to the adoption of the present constitution of this state.
Then, generally, the homestead is exempt from sale under execution. There are but four exceptions to this. The presumption of fact is, that the exemption exists; and whoever will bring himself within the exceptions, or any one of them, must aver and prove himself to be so entitled. Ordinarily this averment should be made in the pleadings in the action in which the judgment is obtained, upon which the execution issues. There may be cases in which, after judgment, it may be proved in a summary way, as the court may direct.
In the absence, therefore, of proper averment and proof to support it, that the debt, to pay which the land mentioned in the complaint was sold, was contracted before the adoption of the present constitution of this state, the presumption of fact is, that it was contracted afterwards, and the exception of the plaintiff in that respect cannot be sustained. Hill v. Oxendine, 79 N. C., 331.
Before, at, and continuously next after the date of the judgment, and until his death, Charles Layton was entitled to and had homestead in the land in controversy. The homestead had not been assigned, nor was the land as much in value as the law allowed; nevertheless, he had and owned it unassigned, per force of the constitution, and it was not subject to be sold to pay that judgment. The assignment of homestead does not, nor is it necessary to create or establish the right to it: assignment only serves to indicate where it is, and whether there be any excess subject to levy and sale to pay judgment creditors. Edwards v. Kearsey, 74 N. C., 241; Lambert v. Kinnery, 74 N. C., 348; Gheen v. Summey, 80 N. C., 187.
But the assignment of homestead is essential in the just and reasonable assertion of the rights of judgment creditors; indeed, it is essential, looking to...
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Stokes v. Smith
...debtor has not been allotted, void. Poe v. Hardie, 65 N.C. 447; Taylor v. Rhyne, 65 N.C. 530; Waters v. Stubbs, 75 N.C. 28; Mebane v. Layton, 89 N.C. 396; McCracken v. Adler, 98 N.C. 400, 4 S.E. 138; Morrison v. Watson, 101 N.C. 332, 7 S.E. 795, 1 L.R.A. 833; Mobley v. Griffin, 104 N.C. 112......
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Long v. Walker
...as an old debt, and was held invalid for that reason, while the court cited and expressly approved the four rules laid down in Mebane v. Layton, 89 N.C. 396, one of which that a sale to satisfy an old debt could be lawfully made without laying off the homestead of the debtor. So, in Miller ......
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Bevan v. Ellis
... ... wherever the homestead has been actually allotted under such ... judgments docketed. In Mebane v. Layton, 89 N.C ... 396, the court said: "But the statute (Battle's ... Revisal, c. 55, § 26) in force at the time of the supposed ... sale ... ...
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Morrison v. Watson
...it was the fault of the purchaser in blending the old and the new debts, and selling under both; and the chief justice, quoting Mebane v. Layton, 89 N. C. 396, said: "A sale without laying off the homestead, unless in case of the several exceptions mentioned above, is unlawful and void." On......