Vanstory v. Thornton
| Decision Date | 05 May 1893 |
| Parties | VANSTORY v. THORNTON. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Cumberland county; Robert W. Winston Judge.
Action by C. P. Vanstory against A. G. Thornton to procure the reappraisement and reallotment of defendant's homestead and subject so much thereof as exceeded $1,000 in value to the payment of a certain judgment in favor of plaintiff against defendant. Subsequent to a prior appeal, (14 S.E Rep. 637,) H. W. Lilly and R. T. Gray, executors of the estate of E. J. Lilly, deceased, and W. P. Wemyss, H. W. Lilly, C. L. Bevil, and W. A. Vanstory, mortgagees, were allowed to become parties defendant; and defendant Thornton consented to sale of the homestead, and elected to take $1,000 of the proceeds in lieu of land. From a judgment ordering the entire proceeds of the sale to be first applied to the payment of the mortgages, in the order of their priorities, and the balance applied on plaintiff's judgment, both plaintiff and defendant Thornton appeal. Reversed on plaintiff's appeal. Affirmed on defendant's appeal.
T. H. Sutton, for plaintiff.
R. P. Buxton, for defendant.
This case comes to us upon the appeal of the plaintiff, who is the judgment creditor, and of the defendant 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 made defendants, and have adopted the answer of the defendant Thornton, did not appeal.
We will first consider the refusal of his honor to submit the issue tendered by Thornton, relative to the alleged payment, in whole or part, of plaintiff's judgment. This issue was tendered by him with the evidence which, he insisted, tended to establish that such payment had been made. He did not contend that he could produce other evidence bearing upon it. It would have been an idle thing to submit such an issue, the burden of which was upon defendant, and at the same time tell the jury that defendant had no evidence to support it; and his honor correctly decided that the facts put in evidence did not prove that any payment had been made on the judgment, or that it had been satisfied, in whole or in part. There was no offer to prove that plaintiff had actually received from the receiver in Thornton v. Lambeth, 103 N.C. 86, 9 S.E. Rep. 432, any money to be applied on this judgment, or that his failure to get it was due to his own fault or negligence. That receiver was appointed, at the instance of the defendant, to take charge of the partnership assets, (Thornton v. Lambeth, supra;) and if, without any neglect on his part, the plaintiff failed to get what the judgment of the court in that cause directed the receiver to pay him, the loss must fall on the defendant, (the plaintiff there,) whose duty it was to see that the money he owed was in fact paid.
The amount due to plaintiff on his judgment being thus fixed, we come to the consideration of his exception to the judgment, which is as follows: "To this judgment the plaintiff, C. P. Vanstory, excepted, claiming that after the payment of costs his judgment for $978.20, with interest from April 1, 1887, docketed May 6, 1889, was entitled to priority over all the mortgage debts, being older, and should be paid in full before any of the proceeds of sale should be applied to any of said mortgages." And in this connection we will also consider the defendant's exception to this judgment, "claiming that, after the payment of the costs and mortgage debts, no part of the fund arising from the sale of his homestead should be paid to the plaintiff, but the balance should be paid to him."
The land, a sale of which is ordered by the judgment appealed from, was allotted to the defendant Thornton, as his homestead, in April, 1885. The relief which the plaintiff demands is that, for reasons set out in his complaint, there should be "a reappraisement and reallotment of the land and improvements of the defendant, to the end that the excess of the homestead, if any, be ascertained, and be subjected to the satisfaction of plaintiff's judgment." It seems to have been conceded by the eminent counsel of the defendant that under the law as declared when this cause was here on demurrer, (110 N.C. 10, 14 S.E. Rep. 637,) and the allegations of the complaint and answer, and the findings of the jury, the plaintiff was entitled to have the reappraisement and reallotment demanded by him. We wish, however, to expressly exclude the conclusion that a reallotment should be decreed, in suits like this one, upon the finding of the jury that the allotted land is worth "more than a homestead;" that is to say, more than one thousand dollars. to accomplish that result, much more must be established by the plaintiff, according to the opinion filed by the late Chief Justice Merrimon in this cause, supra, to which we adhere. Assuming, then, that the parties to this action (which, by the presence of the defendant mortgagees, has become a suit to foreclose their mortgages, as well as to reappraise and reallot the homestead upon the demand of the plaintiff, and for the reasons set out in his complaint,) have consented that a sale of the whole lot shall be made, the purchaser acquiring a title free from all of their claims or liens, and that their respective claims to the fund to be brought into court--the proceeds of the sale--shall be measured and determined by their respective claims and liens on the land, we are required to determine how that fund shall be distributed. This agreement or concession of the parties--that a sale of the whole lot shall be made without a reallotment of the homestead of Thornton--involves, of course, the further concession or agreement that what the lot brings over $1,000 shall represent what the excess over the homestead would have brought if the homestead had been reallotted, and the excess had then been sold; and it also involves the further concession or agreement that the reallotted homestead would have sold for $1,000. If, therefore, after the payment of the costs, (to the payment of which, first, no party excepts,) there shall remain more than $1,000, that excess will represent, and stand in the place of, the portion of the lot which, upon a reappraisement, would lie outside of the homestead boundaries; and this excess of the fund over $1,000 (the homestead) must be applied on the plaintiff's judgment, for it was docketed before any of the mortgages were registered, and it is a first lien on this excess, ( Gulley v. Thurston, 17 S.E. Rep. 13, at this term,) enforceable now because of the reallotment of defendant's homestead. The statute (Code, § 435) makes a docketed judgment a lien on all the land of the debtor in the county where it is docketed, from the date of the docketing, and the creditor may immediately enforce his lien so acquired on all the debtor's land outside of the boundaries of the homestead. Such are his rights. They are plain and unmistakable. No act of the debtor can change them, or in any degree impair them. To hold otherwise would be to displace by our decision a lien given by the statute, and to put it in the power of a judgment debtor to deprive his diligent creditor of the fruits of his diligence.
We hold, of course, that if, after the full payment of plaintiff's judgment, any part of this excess shall remain, it shall be applied on the mortgage debts according to their priorities. This brings us to determine what disposition shall then be made of the homestead money,--the sum which represents and stands in the place of the newly-allotted homestead, and to which none of the parties waive any of their claims, or modify in any degree their legal rights. We must first discuss the relation of the plaintiff to this fund, for it may be that the excess over $1,000 will not be sufficient to pay all costs and his judgment. In some states a docketed judgment creates no lien on the homestead land, but in this state such a judgment creates a lien on all the land of the debtor, --both that outside of the homestead boundaries, and that within those boundaries; the only difference being that the lien on that which is within the homestead boundaries is not enforceable by execution or other final process until there has come about, in some way, a termination of the debtor's constitutional exemption rights in this land, which rights vested in him by the organic law, may be prolonged after his death for the benefit of his widow, in some instances, and in some for the benefit of infant children. As we have said, he cannot now enforce his lien on the homestead land, but his debtor cannot displace that lien by any act of his. It is fixed on the land by law; and this court can only recognize, and at the proper time enforce, it. We conclude, therefore, that the plaintiff has a lien on this fund ($1,000) for the payment of such part of his judgment as is not satisfied by the excess over the homestead money; but, if the other parties interested in this fund so insist, he must a wait the termination of Thornton's exemption rights in this fund before he can get for his own use any part of it. When those rights have terminated, such part of this principal fund as may be necessary will be applied to the satisfaction of the plaintiff's judgment. In the mean time it will be invested as the superior court of Cumberland county may direct, and the interest accruing thereon will be applied on the mortgage debts, paying the senior mortgage first, and then the next oldest, and so on. Any remainder of the corpus after satisfaction of the judgment will be used to pay off any balance then due on the mortgage indebtedness. The defendant Thornton can...
To continue reading
Request your trial