Jones v. . Alsbrook , 115 N.C. 46 ( 1894 )

It is a resident of this State who is entitled under Art. X, sec. 1, of the Constitution, to have his personal property, to the value of $500, exempted from sale under execution. To carry out this provision of the Constitution, sec. 507 of The Code was enacted, (50) under the provisions of which section, whenever the personal property of any resident of this State shall be levied upon, and the owner shall demand that the same, or any part thereof, "shall be exemptfrom sale under such execution," appraisers are provided to lay off the exemption, "which articles shall be exempt from the said levy."

First, the levy; then the demand for the appraisement; next, the appraisement; and last, the exemption from the levy theretofore made, and consequently from sale under the execution of the property set apart.

In Pate v. Harper, 94 N.C. 23, it was said: "We think the debtor is entitled to have his exemption ascertained up to and just before the process is executed by a sale. While the process is in the officer's hands in full activity, the preliminary action of the appraisers is not conclusive, but remains in fieri, capable, at their instance, under the call of the officer, at least of correction and amendment. If property has been omitted which ought to have been put on the list, but was not known at the time to belong to the debtor, so that it could be done, the appraisers ought to have the power, and we think do have it, to enlarge the exemption, so that none which should be exempt shall be sold from him. The mandate of the statute is that the officer shall make his levy upon the entire personal estate subject to seizure under execution, but before he sells, to have so much of it set apart for the debtor, within the limited value, as he may select, and when insufficient, all being below the value, such selection is unnecessary."

Surely the reason of the opportunity given to the judgment debtor up to the last moment to have his exemption set apart will apply with equal force to the judgment creditor, so that, if it be made to appear at the sale that the debtor is entitled to no exemption, the same will not be allowed. It follows that the issue tendered by (51) defendant was the proper one, and should have been submitted, the duty of the sheriff to levy being plain, but the question being whether he should have taken the proper steps, on request of the defendant in execution, to have laid off to her the personal property exempt from sale by the laws of the State. It being ascertained, then, that the time at which the exemption operated was that of the sale, the next question was, whether the defendant in execution was at that time a resident of this State. She testified that, at the time of the levy, she was a resident of this State; that she never went to Suffolk, Virginia, to live; that she and her husband did not go there at all until three or four months after the levy (it is not stated whether this was before or after the sale), and then stayed only eight months, and returned to Edgecombe County, in this State, where they now reside. The cross-examination was directed to the question, whether she had not abandoned her residence in North Carolina and started to Virginia to engage in business. On objection, his Honor would not require her to answer as to her purpose in going to Virginia.

In this exception is, to some extent, involved the meaning of the wordresident, as used in the Constitution (supra), and at what time and under what circumstances one ceases to be. In Munds v. Cassidey, 98 N.C. 558, upon the question, whether H. C. Cassidey was entitled to a personal property exemption, he having been absent from the State for seven or eight years, employed upon a steamboat plying in the waters of Florida, expecting in the future to return to Wilmington, the Court said: "Our Constitution and statute do not extend to such a case. The person must be a resident, actual, and not constructive, to be entitled to the exemption."

In Fulton v. Roberts, 113 N.C. 421, in relation to the laying off a homestead, the definition by the trial judge of the word "resident" having been disapproved, as confounding residence with domicile, the Court said: "We must conclude that the right of exemption (52) ceases here when, by reason of a change of residence, it begins in another State, or when a similar occupancy of a place of residence by one coming from a sister State to this State would entitle such person to the benefit of sec. 2, Art. X, of our Constitution."

It will not be necessary to trouble ourselves with the distinction, sometimes very plain and at others most shadowy, if, indeed, there be any, between residence and domicile. It is well understood that a domicile is in its strict legal sense one's true, fixed and permanent home, to which, whenever he is absent, he has the intention of returning. Horne v. Horne,31 N.C. 99. And the word "residence," while often a word of not so restricted a meaning, in some instances in no respect differs from domicile. There may be an actual and a constructive residence. In Lee v.Moseley, 101 N.C. 311, the word "resident," as employed in Art. X, sec. 2, of the Constitution, is restricted to the former class, and simply means one who has his permanent home in this State. The same term is used in the first section as well as the second of Art. X to designate the persons entitled to homestead and to personal property exemptions.

In order to determine whether one is a resident of this State in this sense, it is necessary, in some instances, to ascertain the intent of the party. When one has been such a resident, a removal from its limits, with intent not to return, will at once deprive him of the privileges incident to his residence here; but the absence may be intended to be of such a temporary nature as to avoid the consequence above — it is for the jury to determine. In which case it may be important to learn the purpose of the party and the circumstances of the removal. Was it for the purpose of engaging in business? the kind of business? did he take with him all of his property? These may be circumstances which the jury should consider. In this view, the question whether this plaintiff did not intend to engage in business in Suffolk was pertinent to the inquiry, whether at the time of the sale, if she (53) were then actually in Virginia, or were on her way there with all her property, she had then abandoned her residence in North Carolina.

As it is evident that there must be a new trial, we will not consider the other exceptions, only as to the instructions given by his Honor upon the measure of damages.

If on another trial it should be found that the plaintiff was a resident of this State, having here her home at the time of the sale of her personal goods in disregard of her rights of exemption, it will be necessary to consider the measure of the damage to which she will be entitled under the law.

This would be full compensation for the loss sustained by her as the result of this disregard of her rights and the sale of her property, which, according to the evidence, was of less value than $500, not the value of the property at the time of the levy, but the actual loss sustained by her. If she regained the property upon the payment by her of the amount of the judgment debt, or any other fixed sum, this would be the measure, and it might be augmented by any further actual expense to which she might have been subjected by the sale of her property.

In Winburne v. Bryan, 73 N.C. 47, where the sheriff, having an execution in his hands against A, sold the land of A., without serving upon him the written notice as required by law before the sale of land under execution, the judge below held that plaintiff, suing the sheriff, was only entitled to nominal damages, unless he proved that the property sold for less than it would have sold for if the notice had been given. "The execution was for only about $20; the land was worth $300 in cash. The plaintiff, a short time after the sale, gave the purchaser $100 for his bid, that is, paid up the execution cost and $100 over and above. The plaintiff is out of pocket $100 over and above the amount of the execution by reason of the default of the (54) defendant; and why he should not be indemnified to that extent we are unable to conceive. Indeed, we incline to the opinion that the jury might have been justified in going further and making some allowance for the inconvenience of being compelled to raise $100 extra, when, had the defendant done his duty, $20 would have answered." The decision goes further and intimates some reasons for punitive damages in that case, which do not apply to the present.

"If the owner has recovered property taken from him by the wrongdoer, that fact will reduce the damages; but the owner is allowed compensation for his expenditures in recovering the property. Thus, where the property was seized and sold by the defendant, a sheriff, and was repurchased by the plaintiff from the one who bought it at the sheriff's sale, it was held that the measure of damages was the amount paid to repurchase the property." 1 Sedgwick on Damages, sec. 58.

Cited: Gardner v. McConnaughey, 157 N.C. 482.