June Term, 1876.
1. There is no belligerency between our former and present exemptions, but they are in peaceful conformity.
2. Hence, our homestead laws do not impair the obligation of contracts and are not unconstitutional.
ACTION for the possession of a tract of land sold by the sheriff under a ven. ex., tried before Henry, J., at Spring Term, 1876, of GRANVILLE.
The following facts were agreed, and his Honor determined the case upon a due consideration thereof, after argument:
On 16 December, 1868, judgment was given in a justice's court in favor of B. L. and D. A. Hunt, assignees, etc., against the defendant Kearsey for $29.70, with interest, etc., which said judgment was docketed in the Superior Court of Granville 16 December, 1868. In January, 1868, one Avery Taborn obtained a judgment against the defendant for $165, and this was docketed in said court on 18 January, 1869; and that on 10 October, 1868, one Philpot (William A.) recovered a judgment in a justice's court against said defendant Kearsey for $23.65 and interest, which was also duly docketed in said Superior Court of (410) Granville 16 December, 1868; and that on said day, to wit, 16 December, 1868, a writ of fieri facias was issued on the judgment in favor of R. L. and D. A. Hunt, assignees, etc., and on the same day was levied upon the land now in controversy as belonging to the defendant Archibald Kearsey. On 18 January, 1869, another fi. fa, issued from said court on the judgment in favor of Taborn and levied on the next day (the 19th) on the same land; and on 16 December, 1868, a fi. fa. issued from said court, which was duly levied on the same day in favor of the said William A. Philpot on the same tract of land as belonging to the defendant Kearsey as aforesaid. These levies were returned without sale, and writs of venditioni exponas afterwards issued from said court, under which, after due advertisement, the sheriff publicly sold said land as the property of defendant Kearsey at the courthouse door in said county, when and where the plaintiff L. C. Edwards became the last and highest bidder at the price of $150, which was duly paid to said sheriff, from whom he received a deed in fee for said lands of date 6 March, 1869, and which was duly proved and registered.
The whole of said tract of land was thus levied on and sold by said sheriff absolutely without laying off or alloting any homestead therein to the said defendant Kearsey, the defendant in the executions aforesaid, and without reservation or exception of any homestead or right of homestead in the same. The said tract of land did not then, nor does it now, exceed the value of $1,000. The defendant Kearsey was and still is a citizen of North Carolina and in possession of said tract of land. He has minor children, and had not at the time of sale nor since title to any other real estate.
On 22 January, 1869, in pursuance of chapter 43 of the Laws of the Special Session, 1868, entitled "An act to provide for laying off the homestead and setting apart the personal property exemption (411) in favor of residents of this State under Article X of the Constitution," the defendant Kearsey applied to a justice of the peace for the benefit of the homestead exemption, as guaranteed by said Article X, whereupon said justice appointed three disinterested freeholders of said county not connected with said Kearsey, who in accordance with said act, on notice, by order of said justice, met at the residence of said Kearsey on 22 January, 1869, aforesaid and, after taking the prescribed oath, laid off and allotted to said Kearsey as a homestead the whole of said tract of land by metes and bounds, making their report to the office of register of deeds. The said register, although said report came into his hands, failed to record it.
Therefore, the defendant insists that at the time of said levies and sale he was and still is entitled to a homestead in said tract of land under and by virtue of the said Article X of the Constitution, as against said judgments and executions. And the said sheriff having sold said land absolutely, without allotting to the defendant his homestead and without any reservation or exception of a homestead or right to the same, said sale was void, and his (the sheriff's) deed to the plaintiff passed no title; and notwithstanding said sale and conveyance the defendant is entitled to a homestead in said land and the plaintiff is not entitled to recover in this action.
On the other hand, it is insisted by the plaintiff that said judgments being for debts contracted by the defendant before our present Constitution went into effect said Article X thereof does not apply to them; or if intended to be so applied would be void as impairing the obligation of contracts contrary to sec. 10, Art. I of the Constitution of the United States, and that the plaintiffs acquired a good title to (412) said land by virtue of said sheriff's sale and deed and is entitled to recover in the action.
The court, upon consideration, being of opinion with the defendant that so much of Article X of our Constitution as exempts from sale under execution or other final process obtained on any debt land of the debtor of the value of $1,000, and the statutes enacted in pursuance thereof, embrace within their operation executions for debt which were contracted before the adoption of said Constitution; and that said article and statutes, when so interpreted and enforced, are not repugnant to Art. I, sec. 10, clause 1 of the Constitution of the United States:
Therefore, it is considered and adjudged by the court that the plaintiff is not entitled to recover, and that he take nothing by his said action, and that the defendant recover his costs. From this judgment the plaintiff appealed.
Batchelor and Haywood for appellant.
Hargrove and Bledsoe contra.
Hill v. Kesler, 63 N.C. 437, governs this case and sustains his Honor's ruling.
Gunn v. Barry, 82 U.S. 610, relates to the exemption laws of Georgia, where the disparity between former and present exemptions is "striking," and affords self-evidence of conflict with the Constitution of the United States, which forbids laws which impair the obligation of contracts. Whereas there is no belligerency between our former and present exemptions, but they are in peaceful conformity. Garrett v. Cheshire, 69 N.C. 396.
PER CURIAM. Affirmed.
Cited: Lowdermilk v. Corpening, 92 N.C. 336; Hughes v. Hodges, 102 N.C. 242.
NOTE. — The above ruling was reversed on writ of error to U.S. Supreme Court. Hill v. Kessler, 96 U.S. 595. See 79 N.C. 664.