Morrison v. Watson

• Decision Date: 13 November 1888
• Citation: 7 S.E. 795,101 N.C. 332
• Court: North Carolina Supreme Court
• Parties: Morrison v. Watson.

7 S.E. 795

(101 N.C. 332)

Morrison

v.Watson.

Supreme Court of North Carolina.

November 13, 1888.

1. Homestead—Sale under Execution—Allotment.

Ad execution sale was made in 1879, alter the constitutional provision for a homestead exemption of the value of $1,000. The judgment was entered in 1864, before such exemption. Held, that while the judgment creditor could satisfy hi? judgment out of the exempt property, if there was not sufficient other property, yet the debtor was entitled to have such portion set off, and entitled to the part of such portion remaining after the satisfaction of the debt, and without such allotment the execution sale was void. Davis, J., dissenting.

2. Evidence—Opinion Evidence.

A witness is competent to testify, as to the value of lands, who bases his estimate on the value of lands in their vicinity.

Appeal from superior court, Richmond county; Connor, Judge.

This action was brought by plaintiif to recover lands which he had purchased upon execution sale. The defense rested upon the theory that the lands included an exemption which had not been set off as required by law, and therefore the sale was void.

J. D. Shaw, for appellant. Chas. W. Tillett, for appellee.

Smith, C. J. The plaintiff derives title to the land he seeks in this action to recover, under a sheriff's sale and deed of conveyance, by virtue of a judgment rendered in favor of the executors of Stephen Pankey against the defendant, John G. Watson, and two others, on a debt of $35 contracted in November, 1864, with interest thereon from the 13th day of that month. The judgment was rendered before a justice of the peace of Richmond county, and docketed in the superior court on May 17, 1870. The judgment having become dormant, leave to issue execution was obtained on an application to the clerk on April 2, 1879. Execution thereupon issued on the 5th day of said month; and the sheriff, pursuant thereto, levied on and sold said lands, as the property of the defendant, to L. B. Moore, to whom the judgment had been assigned, for the sum of $40; and, he having assigned his bid to the plaintiff, the deed for the lands was made by the officer to the latter. The sheriff also had in his hands an execution issued upon a judgment rendered in favor of one Frank Sanford for $15.85, with interest from May 6, 1860, against the defendant. No homestead was allotted to the defendant in the course of these proceedings, and to the present action he opposes the defense that, without an allotment of his exemption, notwithstanding the debts antedated the constitution, in order that the debts might be satisfied from the excess, if sufficient remained to discharge it out of the land, in exoneration of the homestead, the sale was illegal, and the deed did not divest the title. This contention finds support in the ruling of the court, though not unanimous upon the point, in the elaborately argued and carefully considered case of Mc-Canless v. Flinchum, 98 N. C. 358, 4 S. E. Rep. 359. While it is conceded that under the constitution of the United States, as construed and applied to the exemption enactment, a debt previously created, and before the state constitution was adopted, must be paid out of the debtor's estate, and the exemption must give way when it cannot be otherwise satisfied out of the debtor's property, (Edwards v. Kearzey, 96 U. S. 595,) yet the debtor possesses still the right to retain exempt from sale, even at the instance of such a creditor, whatever excess there may be in his lands after the disposition of so much as may be needed to discharge the debt, and to have an inquiry made, in the mode prescribed by law, to have the fact ascertained previous to the sale. Should the sale of the part estimated to be sufficient turn out not to be sufficient, the creditor may then have recourse also to the part assigned as exempt. Code, § 502 et seq. The debt must be paid at all events, but the method of proceeding in appropriating the property liable is a matter of legislative regulation. Were it an open question, it might admit of doubt whether this must not be done in all cases by the assessors, as the statute provides, to render valid the enforcement of the process in the sheriff's hands, and before he undertakes to sell the real estate, instead of instituting such an inquiry before the jury in an action to establish title and recover possession of premises thus sold. But it has been held that when the real estate is manifestly deficient, and it shall so appear afterwards, such sale will be upheld upon the ground that no harm has come or could come to the debtor, by reason of an omission to have a proceeding to ascertain if 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 N. C. 468, the homestead had been set apart, but ineffectually, because not assigned by metes and bounds as prescribed by the statute; and the defendant, claiming under the sheriff's deed a full estate in the land, had come into possession, and refused to admit the exemption. The court recognizing the right of homestead, but unable to restore possession to the plaintiffs, suspended further action in the case until the plaintiffs could in the regular way have their exemption ascertained and set apart; giving them leave, on filing a certified copy of the allotment, to move for a writ of possession. The interruption in the progress of the cause grew out of the want of power in the court to have this done under its direction, and the necessity of pursuing the statutory requirements to secure the full benefits of the constitutional provision. So, if the parties in this case occupied to each other similar, instead of reversed, relations, it would be safe to pursue the same course, and thus enable the debtor to regain his lost possession in furtherance of his legal right to retain possession, until the sheriff, after causing his homestead to be ascertained and its boundaries fixed, should make sale under his execution. Such is not the case before the court, but the plaintiffs seek to dispossess the defendant by virtue of the deed of the sheriff, who sold, as the record shows, a large body of land to satisfy an inconsiderable debt, disallowing any right of homestead, or any proceeding to find out whether the value of the lands was not sufficient both to satisfy the debts and leave some portion to the debtor. It has been repeatedly declared, and, after an elaborate and exhaustive examination of the subject in separate opinions, settled by a majority of the members of the court in McCanlcss v. Flinchum, already cited, that, without regard to the time of origin of the debt, the provisions of the statute for laying off the homestead must be observed, because the debtor has a right to the exemption, if the debt can, with costs, be satisfied out of other lands; and to this end the assessors should allot, within the prescribed limits, so much as in their judgment is not needed to pay the judgment, subject, however, to the creditor's right to have the exempted part sold also, if the other on such sale proves insufficient, and the debtor fails in any way to provide for the unpaid residue. In the case referred to, Merrimon, J., uses this language: "The court ought to have instructed the jury to inquire particularly whether or not the land in question was worth more than the debt of the execution creditor, and the costs, including the costs of laying off the homestead, of the execution debtor; and, if they found that it was, then the plaintiff could not recover because it appeared that the homestead had not been laid off as the law required, and in that case the sheriff had no sufficient authority to sell the land, and therefore his deed to the plaintiff was void."

Many witnesses were examined in reference to the value of the lands at the time of the execution sale, to the reception of whose evidence, offered by the plaintiff, the defendant objected. To this exception to the course taken by the court we have only to say that it has the sanction of the case from an opinion in which we have already quoted a part. The force of the objection to the witness Everett, first examined, being allowed to put an estimate upon the lands, based upon the value of other tracts in the neighborhood, is not apparent; for we do not see how otherwise, unless upon an actual sale of the lands themselves, any reliable estimate could be arrived at. This must of course rest on the valuation given other similar lands, irrespective of the effect of improvements. The references to Warren v. Makely, 85 N. C. 12, and Bruner v. Threadgill, 88 N. C. 361, do not sustain the exception. In the first, an inquiry as to the price brought upon a sale of an adjoining tract some 12 months before, simply made in this form and with no intimation of further evidence of the similarity of their condition, or of any particulars that enter into an estimate of value, was ruled out. Similar proof was offered, in the other case, of the value of a town lot opposite to that whose value was the subject of inquiry, and was rejected as incompetent. Neither goes so far as to deny to a witnesss the expression of an opinion of the value of certain lands founded upon the general value of other lands near thereto; for this is usually a safe, if not the only, guide to the formation of a reliable opinion as to the value of that in controversy. The issues submitted to the jury are the first three of those passed on at a former trial, omitting the fourth, and which will be found in the case as reported in 95 N. C. 479, which were suggested in the opinion then delivered. With the evidence before the jury as to the valuation in 1879, the counsel for the plaintiff requested the court to charge the jury "(1) that there was...