Miller v. Miller
| Decision Date | 31 October 1883 |
| Citation | 89 N.C. 402 |
| Court | North Carolina Supreme Court |
| Parties | L. W. MILLER v. BETSY J. MILLER. |
OPINION TEXT STARTS HERE
EJECTMENT tried at Spring Term, 1882, of ASHE Superior Court, before Avery, J.
The facts bearing upon the exceptions taken, necessary to an understanding of the case, are sufficiently stated in the opinion of this court. The defendant appealed from the judgment of the court below.Mr. Q. F. Neal, for plaintiff .
Mr. J. W. Todd, for defendant .
We think that no one of the exceptions specified in the record can be sustained.
1. It is insisted that the court erred in refusing to charge the jury that the sheriff's deed was void, because he failed to have a homestead laid off to the defendant in the land sold.
The constitution provides that the homestead shall not be exempt from sale under execution or other final process for the payment of obligations contracted for the purchase of the premises. Art. X, §2.
It appears that the debt for which the land was sold was contracted for, and only for, the purchase money of the land; that the defendant had no personal property; that the land sold was all she had at the time of the docketing the judgment, and next thereafter, until the sale was made, and that it was not worth one thousand dollars. It would have been nugatory to lay off the supposed homestead; indeed, there was nothing to lay off, for the whole was subject and necessary to the payment of the judgment creditor's debt for the land. Where it appears that the debt for which the land is to be sold is for taxes; for the purchase money of the land; is secured by a laborer's or mechanic's lien; or for a debt contracted before the adoption of the state constitution, and that the land is worth less than one thousand dollars, and the same is all the property the debtor has that may be sold to pay such debt, it is not necessary that the sheriff shall have the homestead laid off, because, in such case, the land is not exempt from sale and cannot be. It would be idle to go through with the empty form of seeming to lay off to the debtor something, when in fact he is to get nothing! The law does not require a vain thing to be done.
Where the homestead prevails, the creditor gets what is over the exemption, and the law requires it to be laid off, to the end that what remains may be seen and sold. But where the homestead does not prevail, the debtor takes what is left after the debt is paid. If nothing is left, the laying off the homestead would have nothing to operate upon, and it would be useless. It would be otherwise, however, if the debtor had property sufficient to pay the judgment, against which no exemption prevails, and judgments whose liens antedate the last mentioned judgment; for the law favors the homestead. And if the debt that may, if need be, prevail against it, can be paid without selling it, this must be done. The classes of debts that prevail against the homestead do not so prevail necessarily and at all events, but they do so only when to sell it is necessary to pay them. Wilson v. Patton, 87 N. C., 318; Albright v. Albright, 88 N. C., 238.
If the personal property over the exemption and the real property of the debtor will more than pay the judgment that prevails against the homestead, then, in that case, the homestead should be laid off, so that the excess may first be sold; and the sheriff will be in peril if he fails to have this done. Indeed, the sheriff will not be safe in any case when he fails to have the homestead laid off, unless it turns out that the debtor could not have homestead in any measure. It may happen that the debtor will get a homestead of less value than one thousand dollars: it cannot exceed that sum.
So, the court properly refused to charge the jury that the deed was void because the homestead had not been laid off.
2. It is also insisted that the court erred in declining to charge the jury that the execution under which the sheriff sold the land was void, because it was issued by the deputy clerk of the court.
Such clerks are allowed by law. THE CODE, §75. They are required to take an oath of office, and, for a period in the past, have generally issued writs in the name of their principal. They may do all acts the clerk may do, except such as are judicial in their character, or such as a statute may require specially to be done by the clerk himself. While perhaps there is no decision of this court affirming the power of such clerks to issue writs or executions in the name of their principal, it has repeatedly impliedly recognized such power as existing. At the present term, the court has held in Jackson v. Buchanan, 89 N.C. 74, that a deputy clerk might issue a...
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Beck v. Voncannon
...is that he is required to do all things in his principal's name, except where statute expressly provides otherwise. G.S. § 47-1. Miller v. Miller, 89 N.C. 402; Sheperd v. Lane, 13 N.C. 148. See also Piland v. Taylor, 113 N.C. 1, 18 S.E. The statute, G.S. § 1-89, directs that in connection w......
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Long v. Walker
...one of which was that a sale to satisfy an old debt could be lawfully made without laying off the homestead of the debtor. So, in Miller v. Miller, 89 N.C. 402, there is intimation, which is entirelyobiter, of the view subsequently taken by a majority of the court in Morrison v. Watson, 101......
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Morrison v. Watson
...any homestead could be secured, and therefore it would have been useless, and without detriment to the debtor. It is thus held in Miller v. Miller, 89 N. C. 402. See Arnold v. Estis, 92 N. C. 162; Lowdermilk v. Corpening, Id. 333; and other cases to same import. In Littlejohn v. Egerton, 76......
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Morrison v. Watson
...and costs, amounting to $83, and that the defendant had no other property which could have been sold to pay the judgment. Miller v. Miller, 89 N. C. 402. 'The jury found the first and second issues in the negative. Motion for a new trial for reception of the evidence objected to, and for re......