Wilson v. Sparks

• Decision Date: 31 January 1875
• Citation: 72 N.C. 208
• Court: North Carolina Supreme Court
• Parties: PETER A. WILSON v. JOSEPH SPARKS.

72 N.C. 208

PETER A. WILSON

v.JOSEPH SPARKS.

Supreme Court of North Carolina.

January Term, 1875.

1. The Homestead act does not impair the obligation of contracts an is therefore not unconstitutional.

2. The Homestead is not subject to execution for the payment of debts contracted before the adoption of the Homestead act.

( Hill v. Kesler, 63 N. C. Rep.; Garrett v. Cheshire, 69 N. C. Rep. 396; McKeathan v. Terry, 64 N. C. Rep. 25, cited and approved)

CIVIL ACTION for the recovery of land, tried before Cloud, J., at Spring Term, 1874, YADKIN Superior Court.

The complaint alleges that plaintiff and others obtained a judgment against the defendant upon a note executed in 1866. That the judgment was duly docketed in the Superior Court of Forsythe county on the 13th day of January, 1869, and that it was afterwards, on the 13th day of March, 1869, regularly docketed in the Superior Court of Yadkin county. A fi. fa. was issued upon said judgment, and the land sold by the sheriff of Yadkin county. The plaintiff became the purchaser at the price of $130. The sheriff of said county executed a deed conveying said land to plaintiff. After the judgment was rendered, the defendant had all of said land laid off as a homestead.

The plaintiff further insisted that defendant is not entitled to said land as a homestead, because the debt upon which said judgment was rendered was contracted before the passage of the Homestead Act.

The defendant demurred to the complaint and alleged that the said homestead was legal, and the sale thereof was void. That the plaintiff had not stated facts sufficient to constitute a cause of action.

The Court below sustained the demurrer, and thereupon the plaintiff appealed.

McCorkle & Bailey and Josiah Collins, for the appellant .

No counsel, contra .

READE, J.

I. Our statute provides that “no conveyance of land shall be good and available in law, unless the same shall be proved and registered, and all deeds so executed and registered shall be valid and pass estates in land without livery of seisin, attornment or other ceremony whatever.” Bat. Rev., chap. 35, sec. 1.

From this it will be seen that a deed cannot be used to support a title until ““proved” and “registered.” It is true that when registered it relates back and ““passes the estate” as of the time of its execution, just as letters of administration relate back to the death of the intestate, but in neither case does the estate pass until the deed is registered or the letters are issued.

And so in setting out title by deed of bargain and sale enrolled, CHITTY has this form: “And the said E F being so seised afterward, to wit, &c., by a certain indenture of bargain and sale, then and there made between the said E F of the one part, and one G H of the other part, which said indenture sealed with the seal of the said E F, the said G H now brings here into Court, the date whereof is the date and year aforesaid, and which said indenture of bargain and sale was afterterwards, &c., in due manner enrolled, &c., according to the form of the statute in such cases made, &c.”

This form is under Statute 27, Hen. 8, Chap. 16: “Bargains and sales shall not enure to pass a freehold unless the same be made by indenture sealed and enrolled within six months, &c.”

In our case there is no profert or exhibit of any deed, or reference to, or offer to produce one, and no allegation that it has been registered. The only pretense of title is the declaration that he has a deed. The attention of the plaintiff's counsel has been called to this defect, and time has been allowed to amend, but no amendment has been made, and therefore we presume that the fact is as it appears to be, that the plaintiff has no registered deed, and therefore no estate in the premises upon which he can recover.

II. Another objection to the plaintiff's recovery is that the premises in dispute have been allotted to the defendant as his homestead, and therefore were not subject to sale under execution for debt. To this the plaintiff replies that the debt was contracted prior to the law allowing a homestead, and therefore the homestead law did not apply. This question has been so often decided by this Court within the last five years, that no elaborate treatment of it can be necessary in this case. Hill v. Kesler, 63 N. C. Rep., 437, is the leading case, and Garrett v. Cheshire, 69, N. C. Rep., 396, is the last case, in both of which the question is fully considered, and the last case in view of Gunn v. Barry, from Georgia, in the Supreme Court of the United States. We have uniformly admitted that the State had no power to pass a law either by statute or constitutional provision, impairing the obligation of a contract, but we have held that our exemption laws had no such intention and no such effect. We have had exemption laws for a long time, varying...