Durham v. . Bostick and Martin , 72 N.C. 353 ( 1875 )

Mr. Bailey for the appellant made seven points, and it is necessary to dispose of them separately.

The purpose of an argument at bar is to have both sides presented, and to aid the Court in coming to a conclusion, by showing what can be said on the two sides. This purpose of "aiding the Court" requires an attorney to abandon all points made in the hurry of the Circuit, which upon more consideration he finds not to be tenable, so as to devote his argument to the main points of the case, without causing a diversion of the mind of the Court, to matters of minor importance.

1. The execution issued within less than three years after the rendition of the judgment.

2. The executrix was authorized to sue out execution and judgment obtained by the testator. Bat. Rev. chap. 45, sec. 135.

3. The objection for a misjoinder of action on the ground that the two tracts of land did not adjoin, must be taken advantage of by demurrer, if the error appears on the face of the record, otherwise, it must be relied on by the answer. C. C. P. sec's. 98, 99.

4. The declarations of Green while owing the land and claiming the possession, are evidence against the defendant, who claims under him.Cansler v. Fite, 5 Jones 424.

5. That is the main point in the case, and rests on the ground that the validity of the homestead cannot be impeached in a collateral way, and it must be established in some direct proceeding that the judgment on which the execution issued, and the homestead was sold, was rendered for the purchase money of the land — otherwise the sheriff has no power to sell and is liable to indictment for so doing.

The Constitution, Art. V, sec. 2. "Homestead and Exemptions" provides,"no property shall be exempt from sale for taxes or for the payment of obligations contracted for the purchase of the premises." The jury find that the debt on which the judgment was rendered was an obligation for the purchase of the land covered by the homestead, so it is clear that the land was liable to sale under the execution.

As there was no record evidence of this fact, it may be, that the sheriff would have been justified in refusing to take upon himself the responsibility of deciding the fact, and was not obliged to sell, until the creditor should establish the fact, in some direct proceeding for that purpose.

But, in this case, the sheriff took the responsibility of acting upon his own conviction as to the fact, and as his conclusion was right, as found by the jury and the homestead was in fact liable to be sold, there is no principle upon which his sale can be held to be void; he had power to sell and elected to exercise it.

As however the sheriff would have been justified in refusing to sell, that fact suggests the policy of providing by statute, in order to meet the exigency of all like cases that the creditor may allege in his complaint that the debt sued for is "an obligation contracted for the purchase of the premises," and in case the allegation be admitted or found by the jury, the fact shall be set out in the judgment, and shall be noted upon the execution, as in case of a security, who is allowed to have the fact found, and noted on the execution for the guidance of the sheriff.

In the meantime, and without a statute to that effect, if the allegation be made in the complaint and is admitted by the answer, or being denied, is found by the jury, the Superior Court Judges in furtherance of the administration of the law, according to the provisions of the Constitution, will no doubt allow that fact to be set out in the record, so that it may be noted upon the execution, and thereby relieve the sheriff from responsibility; and enable the plaintiff to get pay for his land, without any circuitous proceeding which the refusal of the sheriff to sell, might make necessary in order to enforce payment. The other points need not be noted, except to say that it does not appear, that the defendant had a wife.

PER CURIAM. No error. Judgment affirmed.