Vanstory v. Thornton
| Decision Date | 23 February 1892 |
| Citation | 14 S.E. 637,110 N.C. 10 |
| Court | North Carolina Supreme Court |
| Parties | Vanstory v. Thornton. |
Homestead Exemptions—Incbease in Value— Remedy.
1. Under Const, art. 10, § 2, exempting a 'homestead and the dwellings and buildings used therewith, not exceeding in value $1,000, to be selected by the owner thereof, " the owner cannot, after the laying off of the homestead, erect buildings thereon, increasing the value much beyond $1,000, and claim the whole as exempt.
2. Such increase in the value of the homestead cannot be reached by execution, proceedings in equity furnishing the proper remedy in the absence of any statutory provision.
Appeal from superior court, Cumberland county; R. F. Armfield, Judge.
Suit by C. P. Vanstory against A. G. Thornton. Judgment for defendant, and plaintiff appeals. Reversed.
The other facts fully appear in the following statement by Merrimon, C. J.:
The complaint alleges, in substance, that the defendant's homestead and personal property exemption were duly laid off to him on the 20th day of April, 1885, and the homestead embraced the land specified; that afterwards the dwellings and buildings so laid off were burned and destroyed, that at the time of the said laying off the plaintiff was not a creditor of the defendant; that after such buildings were so burned and destroyed the defendant erected on the said homestead land a large and valuable dwelling-house, making the land and dwelling thereon of the value of $2,500; that afterwards the plaintiff obtained his judgment for $978.20 and interest and costs in the superior court of the county of Cumberland against the defendant and another, and the same was duly docketed on the 6th day of May, 1889; that this judgment has not been paid; that an execution was issued thereupon, and the same has been returned unsatisfied; that the said land and premises have not, in legal effect, ever been laid off to the defendant as and for his homestead; that the plaintiff never had any notice of the laying off of the same; that the improvements on the said land have been placed there since the laying off of the said homestead, etc. The plaintiff demands judgment that the defendant's homestead be reappraised and laid off to him, and that any surplus of the premises be sold to satisfy the plaintiff's said judgment, and for general relief, etc. The defendant demurs to the complaint, and assigns as ground of his demurrer that the said premises were laid off to him, as appears by the complaint, on the 20th of April, 1885, as and for his homestead, and he is entitled to have the same exempt from sale under execution or other final process, etc., by virtue of the constitution, etc. The court sustained the demurrer, and gave judgment accordingly. The plaintiff excepted, and appealed to this court.
Sutton & Cook, for appellant.
R. P. Buxton, for appellee.
Merrimon, C. J., (after stating the facts.) The constitution (article 10, § 2,) provides that "every homestead, and the dwellings and buildings used therewith, not exceeding in value one thousand dollars, to be selected by the owner thereof, or, in lieu thereof, at the option of the owner, any lot in a city, town, or village, with the dwelling and buildings used thereon, owned and occupied by any resident of this state, and not exceeding the value of one thousand dollars, shall be exempt from sale under execution or other final process obtained on any debt, " etc. Thus the constitution defines and limits what shall constitute the homestead in this state, exempt from sale under execution or other final process. Such exemption does not extend to certain excepted cases that need not be mentioned particularly here. The statute (Code, §§ 502-524) prescribes how this homestead shall be valued and laid off to the person entitled to have the same. It is to be observedin the present connection that a distinct and clear part of the purpose of the clause above recited is to provide that the homestead, wherever situate, and the dwellings and buildings used therewith, shall be so exempt; but such exemption does not extend to the whole of the debtor's homestead, unless it be of value less than one thousand dollars. The provision is express and clear in its terms that the homestead is so exempt, "not exceeding in value one thousand dollars, to be selected by the owner thereof." He is entitled to have and enjoy that...
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Vanstory v. Thornton
...who is the judgment debtor. The mortgagees, who have come into the action, of their own motion, since it was last before the court, (110 N.C. 10, 14 S.E. Rep. 637,) and have been defendants, and have adopted the answer of the defendant Thornton, did not appeal. We will first consider the re......
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Chadbourn Sash, Door & Lumber Co. v. Parker
... ... as becomes in excess of $1,000 by reason of betterments or ... enhancement in values. Vanstory v. Thornton, 110 ... N.C. 14, 14 S.E. 637; Shoaf v. Frost, 116 N.C. 677, ... 21 S.E. 409; McCaskill v. McKinnon, 125 N.C. 184, 34 ... S.E. 273; ... ...
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Vanstory v. Thornton
...against A. G. Thornton and others. From a decree, both parties appeal. Affirmed as to both appeals. For the facts in the case, see 14 S. E. 637, 17 S. E. 506. Thos. H. Sutton, for plaintiff. Geo. M. Rose and N. A. Sinclair, for defendants. Appeal of Defendant Mrs. Elsie Thornton. BURWELL, J......
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Sample v. Jackson
... ... [38 S.E.2d 156.] ... the case, it is true that the creditor would be required to ... pursue his remedy by an action in equity, as in Vanstory ... v. Thornton, 110 N.C. 10, 14 S.E. 637, or by application ... to the Clerk of Superior Court under provisions of G.S. s ... 1-373. See ... ...