Jones v. Wagoner , 70 N.C. 322 ( 1874 )

PeaesoN, C, J.

The question as to whether mandamus will lie to compel a sheriff to sell land under a fieri facias is waived by treating this as a rule upon the sheriff in the case, Jones v. Styres, to show cause why he shall not be ordered as an officer of the Court to execute the writ.

Treating it in that way the sheriff shows for cause the homestead act and the act of 187G-71, forbidding the sale of rever-sionary interest” or estate after the homestead expires.

At common law land was not liable for debts, and a party was trusted on the faith of his personal property and the remedy against Ms Imly.

Statute Eligit, 13 Edw. 1, gave the creditor a right to -extend the one-half of the debtors land at a yearly valuation until the debt was discharged. Our statute of 1784 subjected land to sale. The act of 1872 subjects trusts, estates and equities of redemption to sale under execution.

Clearly the General Assembly has power to repeal these statutes, and there could be no objection on the score of impairing the obligation of contracts, provided the repealing act was confined to debts thereafter contracted. The homestead act and the act forbidding the sale of the reversion until after the homestead estate runs out, are in effect only partial repeals of the then statutes above referred to.

The debt in our case was contracted in 1872, (as we infer from the manner in which the case is stated, and from what was said on the argument,) so this partial repeal of the act of 1874 does not impair the obligation of the contract sued on. The plaintiff at the time he gave the credit had notice that he could not subject the land, unless there was an excess over and above the value of the homestead.

"We are unable to see how the deed from Styres and wife to Long can effect the question, for supposing it be fraudulent and void as-to creditors, it cannot have the legal effect to enlarge the rights of creditors, so as to put the homestead out of the way. Crummen v. Bennett, 68 N. C. 494.

We concur in the ruling of his Honor, and order “the rule’>' to be discharged at the- cost of the plainitff’.

Pee. Cubiam. Judgment affirmed.