Barrett v. . Richardson , 76 N.C. 429 ( 1877 )

The plaintiff was the owner of the land in controversy, and in July, 1869, he had his homestead therein laid off by metes and bounds according to law. Subsequent thereto, judgments were obtained against him on debts which he owed before the adoption of the Constitution which secures a homestead. These judgments were docketed; and executions issued thereon were levied on the land in controversy "subject to homestead."

The sale was made by the Sheriff under the levy and his deed to the purchaser recites the levy. The defendants, who claim under said purchaser, claim the land discharged of the homestead, upon the ground that the debts for which the land was sold were contracted prior to the adoption of the Constitution aforesaid; and that therefore the plaintiff had no right to claim a homestead as against those debts.

Grant that, for the sake of argument; and grant that the plaintiffs in these executions might have had the lands levied on and sold, yet they were not obliged to do it and did not do it. On the contrary, the levy, sale and Sheriff's deed were "subject to homestead." If the deed under which the defendants claim, recognizes the homestead, a thing laid off by metes and bounds, as exempt from its operation, how can the defendants claim what their deed does not profess to convey? If it was the purpose to sell the land in spite of the homestead, why not say so? Why sacrifice the debtor's property under the pretence that it was encumbered if it was not? The sale was not made subject to homestead if there is any, but unconditionally and without qualification, "subject to homestead." The fact that the plaintiff's homestead had been laid off was notorious and the bidders must have understood that they were buying subject to that exception. Before the statute and the decisions exempting it, it was generally understood that the reversion, in case of a homestead, might be sold; and the small sum for which the land sold would seem to indicate that such was the notion at this sale. The premises sold for $330, whereas but a short time before, they had been valued to the plaintiff at $750. Such a levy and deed cannot be supported as conveying the premises discharged of the homestead. There stand the premises, let the creditors levy upon them and sell them if they think they have the right to do so. It was stated by the defendants' counsel at this bar that he desired the opinion of this Court as to whether the plaintiff is entitled to a homestead in the premises as against debts contracted as these were. Such is our opinion as expressed in numerous cases. Notably, Hill v. Kessler, 63 N.C. 437, and Garrett v. Cheshire,69 N.C. 396.

No error.

PER CURIAM. Judgment affirmed.