Opinion
(September Term, 1887.)
Constitution — Homestead — Appeal — Record and Case — Void and Voidable Execution Sales — Demurrer — Trial by Jury — Issues — New Trial.
M., in 1870, recovered judgment against F. upon a debt contracted in 1862, and caused several tracts of land, which he alleged belonged to the debtor, but which the latter had fraudulently conveyed, to be levied upon and sold en masse, and he became the purchaser. No homestead was allotted. On the trial of an action to recover the land, a jury having been empaneled, the record proper stated "there was no response from the jury." but that "judgment was rendered for the defendant upon demurrer to the evidence"; the case on appeal stated that the court instructed the jury that the plaintiff could not recover, and a verdict was rendered accordingly: Held (SMITH, C. J., dissenting):
1. That the statement contained in the record proper must prevail, and as it appeared therefrom that the judge had, in effect, assumed certain facts which were in issue, and which should have been submitted to the jury — trial by jury not having been waived — a new trial must be granted.
2. (Davis, J., dissenting.) That a sale of land under execution upon a judgment founded upon a debt contracted prior to the adoption of the Constitution of 1868, without first allotting the debtor's homestead, unless it distinctly appears there can be no excess, is void, and the purchaser will acquire no title.
3. The distinction between the demurrer to the complaint and a demurrer to the evidence discussed by SMITH, C. J.
4. Void and voidable execution sales discussed and the authorities reviewed by SMITH, C. J., and DAVIS, J.
5. The practice with respect to the allotment of homestead under process to enforce judgments founded upon "old debts" discussed by MERRIMON, J.
( Farmer v. Willard, 75 N.C. 401; Morrison v. Watson, 95 N.C. 479; Mitchell v. Brown, 88 N.C. 156; Turrentine v. R. R., 92 N.C. 638; S. v. Locke, 77 N.C. 481; S. v. Sykes, 79 N.C. 618; Isler v. Murphy, 71 N.C. 436; Bernheim v. Waring, 79 N.C. 56; Jones v. Call, 93 N.C. 170; Brown v. Kinsey, 81 N.C. 245; Jones v. Lewis, 8 Ired., 70; Anderson v. Pritchett, 72 N.C. 135; Hollowell v. Skinner, 4 Ired., 165; Nixon v. Harrell, 5 Jones, 76; Bank v. Graham, 82 N.C. 489; Beckwith v. Mining Co., 87 N.C. 155; Huggins v. Ketchum, 4 D. B., 414; Wilson v. Twitty, 3 Hawks, 44; Thompson v. Hodges, ibid., 51; Durham v. Bostwick, 72 N.C. 353: Arnold v. Estes, 92 N.C. 162; Mebane v. Layton, 89 N.C. 396; Miller v. Miller, 89 N.C. 402; Albright v. Albright, 88 N.C. 238; Gaster v. Hardie, 75 N.C. 462; Spoon v. Reid, 78 N.C. 245; Bank v. Green, ibid., 247; Gheen v. Summey, 80 N.C. 187; Earle v. Hardie, ibid., 177; Richardson v. Wicker, ibid., 172; Crummen v. Bennett, 68 N.C. 494; Currie v. Clark, 90 N.C. 355; Burton v. Spiers, 92 N.C. 503; Hinton v. Roach, 95 N.C. 106; S. v. Rives, 5 Ired., 297; Wilson v. Patton, 87 N.C. 318; Dortch v. Benton, ante, 90; Cheatham v. Jones, 68 N.C. 153, cited and commented upon.)
(359) CIVIL ACTION tried before Gilmer, J., at August Term, 1887, of STOKES.
James T. Morehead for plaintiff.
C. B. Watson and W. B. Glenn for defendant.
The complaint alleges that the plaintiff is the owner in fee and entitled to the possession of the land described therein, and that the defendants unlawfully withheld the possession from him.
The answer denies the allegations of the complaint, and asserts that the defendants are "in truth and fact owners in fee simple of said land."
The record sets out that "at August Term, 1887, the case came on for hearing before his Honor, Gilmer, J., and a jury upon the following issues:
"1. Is the plaintiff the owner and entitled to the lands sued for?
"Answer: . . .
"2. What damage, if any, is the plaintiff entitled to receive for the wrongful detention thereof?
"Answer: . . ."
"There being no response from the jury, judgment upon demurrer to the evidence for defendants; appeal by plaintiff to the Supreme Court in open court. Undertaking on appeal fixed at $50."
(360) The parties disagreeing, the case on appeal settled by the court is as follows:
"The plaintiff claimed the land in controversy under a deed, executed to him by the sheriff of Stokes County, on 6 February, 1871, conveying to him four separate tracts of land in Stokes County, one tract on the north side of Dan River and three on the south side, not contiguous, one tract containing fifty acres, being the land in controversy in this action. A judgment in favor of the plaintiff and against the defendant, James Flinchum, for $205.09, and docketed in Stokes County 6 October, 1870, together with the summons and sheriff's return duly served, and justice's judgment, was put in evidence; and it was admitted that the debt on which the judgment was rendered bore date 10 March, 1862; also execution duly issued to satisfy said judgment with the return of the sheriff showing a levy upon all four of the tracts of land belonging to defendant James Flinchum, and a sale on 6 February, 1871, and purchased by plaintiff at the price of $200 for all of the tracts.
"W. H. Gentry, a witness for plaintiff, testified that he put up and sold all four of the tracts together, when plaintiff bought them, and that he was acting under the direction of plaintiff.
"Plaintiff offered in evidence a deed from James Flinchum to defendant, Jacob Flinchum, a son, for fifty acres (the land in controversy) at the stated price of $70, a deed from James Flinchum, Sr., to James Flinchum, Jr., a son, for a seventy-acre tract at $110, and from James Flinchum to James Rierson (a son-in-law) another tract, seventy acres, at $70.00, and to Pleasant Tilley (another son-in-law) 125 acres at $170, the four tracts included in the sheriff's deed to plaintiff, and all bearing date 1 March, 1870, and embracing 315 acres.
"It was proven by plaintiff that the land bought by him was worth at the time of the sale by the sheriff $5 per acre, or (361) $1,575.
The land was sold without allotting to the defendant, James Flinchum, his homestead.
"The plaintiff contended that the deeds from James Flinchum, the father, to his respective sons and sons-in-law, were made to defraud his creditors and were void, and introduced much testimony tending to show such fraudulent intent.
"The defendant introduced no testimony, but insisted before the court, as upon demurrer to the testimony, that upon the plaintiff's own showing there was a sufficiency of land belonging to defendant James Flinchum, at the time of the sale, in excess of a homestead, of the value of $1,000 to satisfy the plaintiff's debt, and that the sale by the sheriff in bulk, and his deed to plaintiff, was contrary to law and void, and passed no title to purchaser. This was the only contention before the court and jury. His Honor being of opinion with defendants, instructed the jury that the plaintiff's deed was void and conveyed no title to plaintiff, and that he could not recover, and plaintiff excepted.
"There was a verdict for the defendants. Motion by plaintiff for a new trial on the ground of error in instructions above specified. Motion overruled. Judgment against plaintiff for costs. Appeal by plaintiff to Supreme Court, in open court."
The record proper states that certain issues were submitted to the jury, and that "there being no response from the jury, judgment upon demurrer to the evidence for the defendant, and appeal by plaintiff."
This, though in conflict with the statement of the case on (362) appeal, must be taken as true. The statement of the case is no part of the record proper, and when in conflict with it the latter must prevail, because it imports absolute verity. Farmer v. Willard, 75 N.C. 401.
We must take it then, as appears from the record, that there was no verdict upon the issues.
The Code, sec. 957, makes it the duty of the Supreme Court to render such judgment, "as on inspection of the whole record it shall appear to them ought in law to be rendered thereon, or, as now the Act of 1887 directs, and when the judgment is not supported by the record (in this case the record shows that there was no verdict), or is rendered upon an inconsistent or unsatisfactory verdict, a new trial must be awarded, as was done in Morrison v. Watson, 95 N.C. 479; Mitchell v. Brown, 88 N.C. 156, and Turrentine v. R. R., 92 N.C. 638.
If it be said that in this case the judgment of the court was based upon facts proved, and that they were just such as the jury ought to have found upon the evidence as applied to the issues submitted, and it is "sticking in the bark" to say that judgment shall not be rendered because the facts proved were not found by the jury, the answer is, that under our Constitution, Art. Iv. sec. 13, unless a jury trial be waived, the judge has no right to find the issue of fact joined, however clear the proof may be; it is an invasion of the exclusive and true office and province of the jury. It is his duty to "state, in a plain and correct manner, the evidence given in the case, and declare and explain the law arising thereon," but he can give no opinion even whether a fact is fully or sufficiently proven. The Code, sec. 413; S. v. Locke, 77 N.C. 481; S. v. Sykes, 79 N.C. 618.
Proof is the result or conclusion usually reached by evidence. If there was evidence upon the issues, the jury alone could determine and weigh its effect, and find the fact to be deduced from it; if there is no evidence, or if it is alleged to be insufficient and so held, the court may withhold it from the jury, but the court cannot say (363) upon the evidence what is or is not proven. This, unless by consent, is for the jury alone. If an issue of fact arises, even upon a motion in a cause affecting materially the judgment and rights of the parties, either has a right to have it decided by a jury. Isler v. Murphy, 71 N.C. 436.
When the court instructs the jury that there is no evidence, or insufficient evidence, the party excepting has a right to have the evidence set out in the record, so as to enable this Court to review the ruling in the court below.
The case before us states that: "It was proven by plaintiff that the land sold by the sheriff as aforesaid and bought by him, was worth at the time of the sale by the sheriff $5 per acre, or $1,575." This may or may not be the effect of the plaintiff's testimony — it may or may not have been the conclusion which the jury would have deduced from it, but what that testimony was, does not appear in the record, but it does appear that there was other evidence tending to show that the land was worth much less. It appears that it was sold at public auction — it is not alleged that there was any fraud or collusion on the part of the plaintiff or sheriff by which its value was affected, and if such allegation had been made, the plaintiff would have had a right to have had it passed upon by the jury.
The land was worth what a prudent, discreet person, wishing to buy and able to buy would give for it, and the only act of the sheriff or of the plaintiff in conducting the sale, of which the defendants complain, which could affect the price, is that it was sold en masse; this fact, if it had been found by the jury, does not exclude from the consideration of the jury, as evidence of the value of the land, the price at which it sold at public auction, nor the fact which appeared, that the plaintiff himself had sold the land a short time before at much less than $1,000. What effect the alleged fraudulent acts of the defendants, of which, so the case states, there "was much testimony," may have had upon the price, (364) or how and to what extent they may have affected the value of the land by beclouding the title, does not appear, and whether, in this respect, the defendants could take advantage of their own alleged fraudulent acts or not, there was evidence tending to show that the land was worth less than $1,000; and the plaintiff had a right to have it passed upon by the jury. This was his constitutional right. Bernheim v. Waring, 79 N.C. 56; Jones v. Call, 93 N.C. 170; Brown v. Kinsey, 81 N.C. 245.
The defendants say the sale was made by the sheriff in bulk, and they insist that his deed to the plaintiff was void for that reason. It is undoubtedly the duty of the sheriff to sell in such way as to realize, so far as he may be able to do so, a fair price for the property sold under execution, and if he fails to do so, the sale is voidable, and, upon objection, may be set aside; but this is a question of fact which ought to be submitted to a jury. Jones v. Lewis, 8 Ired., 70.
It is said in Andrews v. Pritchett, 72 N.C. 135, that if a sale is not made by the sheriff in a fair and just manner it is voidable. Voidable by whom? The general answer is, voidable by any person injured thereby — by the defendant in the execution — by any creditor of the execution debtor. But it is equally clear, that no matter how irregular soever the sale may have been, no one could complain of it who was assenting to it. Only a person injured can complain, and as against him it is voidable, not void. It is valid against every one except the party injured, and he must show how he was injured, in order to avoid the sale — if made with his own assent, or if the insufficient price was caused by his own neglect or fraud, as to him it was damnum absque injuria. Andrews v. Pritchett, supra; Hollowell v. Skinner, 4 Ired., 165.
For an improper discharge of his duty in selling property (365) under execution, the party injured has his remedy against the sheriff, and, as we have seen, the sale may be set aside, but it does not make the sale void. Nixon v. Harrell, 5 Jones, 76. In the absence of fraud (and none is alleged against the plaintiff) the sale will not be set aside. Bank v. Graham, 82 N.C. 489.
A sale will not be set aside for inadequate price, unless undue advantage or fraud is suggested, and this is a fact to be found. Beckwith v. Mining Co., 87 N.C. 155. A sale en masse is not void, but will be supported where no fraud is shown either in the sheriff or purchaser. Huggins v. Ketchum, 4 Dev. Bat., 414; Wilson v. Twitty, 3 Hawks, 44; Thompson v. Hodges, 3 Hawks, 51.
In Durham v. Bostwick Martin, 72 N.C. 353, the plaintiff claimed under a sheriff's deed; the defendants alleged that the land was exempt from sale under execution as a homestead, and that the sale by the sheriff was void. It was found by the jury that the deed from Bostwick was made to defraud creditors; that Martin, who became the purchaser, had notice of the fraud when he purchased, and that the consideration of the note sued on was for a balance due on the purchase of the land. No homestead was laid off by the sheriff. Upon the verdict of the jury, Judgment was given for the plaintiffs, and it was held good.
The case before us, as alleged by the plaintiff, is almost an exact parallel.
It is alleged that the defendant James Flinchum, Sr., sold to his codefendant, Jacob Flinchum, to defraud creditors — that Jacob Flinchum, the purchaser, was a party to the fraud, and that the consideration of the judgment upon which the execution issued, under which the land was sold and purchased by the plaintiff, was an old debt. If the jury should find these facts as alleged (and the plaintiff had a right to have them passed upon by the jury), it is difficult to perceive how, upon the authority of the last cited case, the first issue presented in the record should not be found in favor of the plaintiff.
It was upon that issue that the defendants insisted that the (366) sale under which the plaintiff claimed was void, because the land was sold in bulk and without laying off the homestead. The execution under which the plaintiff purchased was issued on an old debt, against which no homestead exemption interposed. As settled by this Court, though the deed from James Flinchum, Sr., to Jacob Flinchum, may have been fraudulent and void as against an old debt, yet he was entitled to a homestead in any excess to the extent of $1,000.
In Morrison v. Watson, 95 N.C. 479, there was no question of fraud affecting the rights of the parties to the land. The execution was upon an old debt. There was a verdict upon issues submitted, and the judgment, after reciting that the judgment was for a debt contracted prior to 1868, concludes thus: "And it appearing from the verdict and the said admitted fact, that the land was of sufficient value to constitute the defendant a homestead, as well as to satisfy said execution, it is ordered and adjudged by the court that the plaintiff take nothing," etc.
It appeared from the case that one of the findings of the jury was in conflict with one of the admitted facts, and this Court granted a new trial. The Court could not render in such a case a judgment non obstante veredicto.
It would be singular if the court could not render a judgment upon an admitted fact that was in conflict with the fact found by the jury and yet should have the power to take the question of fact entirely from the jury and assume that any fact was proven.
In Arnold v. Estes, 92 N.C. 162, the execution under which the sheriff sold, was upon a judgment rendered on an account, a part of which had been contracted prior to the adoption of the present Constitution and a part after. It was held to be the duty of the sheriff to lay off the homestead before sale, to the end that the debtor (367) might get the benefit of his exemption against "subsequent and subordinate liabilities incurred." The Chief Justice, quoting Mebane Layton, 89 N.C. 396, said, "it is in emphatic terms declared that sale without laying off the homestead, unless in case of the several exceptions mentioned, is unlawful and void." The exceptions are (1) for taxes, (2) for payment of money due on the purchase of the property; (3) laborer's lien, and (4) debts contracted prior to the adoption of the present constitution, and as to these, it may be declare in equally emphatic terms, that the sale is not void, simply because of a failure of the sheriff to lay off the homestead.
Not only was this so in Miller v. Miller, 89 N.C. 402, immediately following Mebane v. Layton, but it is said, "where the homestead prevails, the creditor gets what is over and above the exemption, and the law requires it to be laid off, to the end that what remains may be sold, and the sheriff cannot sell without first laying off," etc., and the execution creditor cannot require the sheriff to sell without first paying or tendering his fees and having the homestead allotted; "but where the homestead does not prevail, the debtor takes what is left, after the debt is paid," and in the latter case, the sheriff has no right to require execution creditors to pay the fees for laying off the homestead, and the execution debtor cannot require it without paying the fees. In such cases the application must come from the debtor.
In Albright v. Albright, 88 N.C. 238, there were judgments against the plaintiff on both old and new debts. As against the new debts, he was entitled to his homestead; as against the old, he was not, and he asked the intercession of the court, to have his property sold to the best advantage, so as, if possible, to secure a homestead for himself in the excess above the old debts, and this was upon his application, (368) and the court directed the sale to be suspended until the priorities of the rights of parties could be adjusted, so that the land could be so sold as to command a fair price, after all conflicting incumbrances were settled, and all clouds removed from the title. It was held that he was entitled to this relief, and similar relief was afforded upon the application of the debtor in Gaster v. Hardie, 75 N.C. 462.
In Spoon v. Reid, 78 N.C. 245, it was said: "The sheriff is not obliged to lay off to the defendant the house in which he lives, if it is not his property. . . . All of a man's property was and is held subject to the payment of his debts, except in so far, and to the extent only, that it has been specifically exempted."
As against debts contracted prior to 1868, there is no homestead exemption. If the debtor has more property than will pay such debts, he is entitled to his homestead in the excess, but it is no part of the duty of the creditor holding such debt, nor of the sheriff with an execution in his hands, issued upon a judgment on such a debt, to investigate and find out without the aid of the debtor, who makes no claim to a homestead, who professes to have no interest in the property, whether there is an excess or not. Bank v. Green, 78 N.C. 247.
Upon the payment of his fees, it is the duty of the sheriff to lay off the homestead, but this applies, and can only apply, to cases in which the party is entitled, as against the execution creditor, to the homestead, and it will be found that in all cases where the sales have been held void by reason of his failure, it was either where the homestead was valid against the execution debtor, or if in the excess, after satisfying a debt of the excepted classes, when he refused to do so when requested by the execution debtor or some one succeeding to his rights.
In Edwards v. Kearsey, 6 Otto., 595, the Supreme Court of the United States, reversing the judgment of this Court, said: "The claim for the retrospective efficacy of the Constitution, or the laws cannot be supported," and the Constitution of 1868, as expounded by this (369) Court, "had the laws passed to carry out its provisions," impaired the obligation of the contracts in question — that is, contracts made anterior to the adoption of the Constitution.
At an early day, after the decision in Edwards v. Kearney, this Court in Gheen v. Summey, 80 N.C. 187, said the Act of 1869, Battle's Revisal, ch. 55 (The Code, sec. 510 to 524), "so far as it provides the machinery for laying off and allotting the homestead against debts contracted prior to the adoption of the Constitution of 1868, is void," . . . "and there is no obstacle to the levy and sale under their executions," etc. "The second section of Article X of our Constitution of 1868 having been declared void as against debts previously contracted, the act of the Legislature passed (Bat. Rev., ch. 55), to carry its provisions into effect, is also void as against the same debts." Earle v. Hardie, 80 N.C. 177.
In Richardson v. Wicker, 80 N.C. 172, which was a motion to amerce the sheriff for failure to have in the court the amount of an execution issued upon a judgment on a debt contracted prior to 1868, this Court said: "The imposition of a penalty for a want of official diligence is a matter of State regulation, and it would be no impairment of the plaintiff's right to collect his debt if the Legislature should repeal the amercement law altogether"; but it was not only said in that case that the sheriff had substantially the right under executions on old debts to sell the real and personal property of the debtor without any exemption whatever, except the personal property exempt under legislation in existence at the time of the contract, but that his failure to sell would give to the plaintiff in such execution "a right by action on the case against the sheriff alone, or by a suit on his official bond, to recover such damages as he could prove he had sustained"; "and there is," says the Court, "no doubt he could have maintained such (370) action."
It was the duty of the sheriff to sell without laying off the homestead and his return that the "plaintiff neither pays nor tenders fees to lay off same (the homestead), and therefore no action" would not protect him. Crummen v. Bennett, and all that class of cases were with Edwards v. Kearney, overruled by the Supreme Court of the United States in the last named case, and since that decision I have not been able to find a case in conflict with Gheen v. Summey, Earle v. Hardie and Richardson v. Wicker, supra, and Crummen v. Bennett and the like cases are, I think, no more authority by which we can be guided than Edwards v. Kearney.
They have been overruled and cease to be authority.
In perfect harmony with the decision of the Supreme Court of the United States is Edwards v. Kearney, as against creditors holding debts contracted since the adoption of the Constitution, a sale under execution, without laying off the homestead is void, and as against such debts no sale of the homestead by the debtor is fraudulent and void, because, as to such debts there are no rights against the homestead; yet a sale made by a debtor with intent to defraud a creditor holding a debt against which the homestead does not avail, is fraudulent and void as against such creditor, and it can be no part of the duty of such creditor or of the sheriff to investigate and sift the acts of the fraudulent execution debtor and his fraudulent vendee, and find just at what point the fraud ends, and the saving and purifying efficacy of the homestead begins, and, I think, with still less reason can the courts be called on to aid them, when the alleged fraudulent vendee is claiming under the deed of the vendor, paramount to, and in denial of, the creditor's right altogether.
This Court has held that a deed, though made by a debtor to defraud his creditors, and valid as between the parties, and void as to creditors, does not defeat the fraudulent vendor's right to his homestead, (371) "for," says Pearson, C. J., "the creditor could not have reached that by his execution had the debtor retained his homestead, but his fraud was in conveying the other part of the land. That the creditor can reach by his execution. As to the homestead he has no concern; that matter will rest between the fraudulent donor and donee." Crummen v. Bennett, 68 N.C. 494.
It rests, briefly, upon the proposition that, as the creditor has no right to have his debt paid by a sale of the homestead under execution, therefore the fraudulent sale of the homestead is, as to him, no fraud.
This reasoning cannot apply to creditors within the four excepted classes. Adhering to the rule of stare decisis, and without questioning the soundness of the reasoning upon which the decision rests, it cannot apply to debts of the excepted class, because as against them the sale is fraudulent and void. To hold differently, and permit the fraudulent vendor and vendee — after having, by a sale, fraudulent and void, as against the plaintiff's debt, sought to defraud him of payment, and, without having asserted any claim to the homestead, and after having by their own fraudulent acts and claim of title and denial of plaintiff's right to have his debt satisfied by a sale of the land in dispute, thrown such a cloud upon the title as to affect its value and make it unsafe for any prudent person to buy it at a full and fair price (for only the interest of the execution debtor is sold under execution, there is no warranty of title, and the fraudulent vendee, who alone verifies the answer, is, in this very action, claiming the land), to permit parties under such circumstances to come into court and ask immunity and protection from the consequences of their own fraudulent acts, claiming all the benefits without any offer to pay or secure the debt which it was their fraudulent purpose to defeat, would be to invest the homestead with a purity and sanctity which cannot be stained by fraud; it would, in fact, make it one place where fraud can safely dwell, and though (372) detected and exposed, be still protected and secure, naked and unblushing in the very face of the court. If such can be the law, honesty and justice might well blush for shame, and dishonesty and fraud glory in their triumph. It may be that in this case, if the land was sold under such circumstances as prevented a fair price, upon a proper application, as was done in Currie v. Clarke, 90 N.C. 355, and suggested in Andrews v. Pritchett, 72 N.C. 135, the sale may be set aside, "restoring the parties to the status they occupied previously thereto, and without prejudice to the plaintiff's remedies, from the lapse of time." There is error.