Wilson v. . Patton , 87 N.C. 318 ( 1882 )

The transcript of the judgment from Iredell County in favor of the Bank Statesville, though informal, is, we think, not so much so as to vitiate it. It contains all the essential requisites of a judgment, the day of its rendition, the names of the parties, plaintiff and defendant, the amount of the debt, and the costs of the action. No one who reads it can doubt but that a judgment was rendered in the superior court of Iredell County in favor of the Bank was rendered of Statesville against Mount Patton and W. W. McDowell, for the sum mentioned in the transcript.

The main object of the legislature in requiring judgments to be docketed in counties other than that in which the judgment was rendered, is to give notice to the world that the plaintiff had a lien on the defendant's land in that county. And this judgment, as docketed, gave that notice as effectually as if it had been entered according to the most approved formula.

The next question which present itself for our consideration is, whether the Wilson and Duke's judgments, which were rendered upon notes executed in renewal of notes which ante-dated the first of January, 1868, were to be considered as old debts, and therefore privileged from the right of homestead claimed by defendant. Upon this subject there is a diversity of opinion. In some of the states, the debt, evidenced by a note in renewal of one given previously to the statute giving a homestead, is deemed to be pre-existing debt. In Louisiana the contrary is held. Thompson on Homestead, Sec. 311.

The question has not been directly decided in this state, but in the case of Cable v. Hardin, 67 N.C. 472, it was held that a note, given in renewal of an existing note, is a novation of the debt, and the old debt is extinguished by the new one contracted in its stead. But (323) there is an apparent conflict between the decision in this case and that in Hyman v. Devereux, 63 N.C. 624, where the opinion was delivered by the same learned judge. Though we think the decisions may be reconciled, we deem it necessary to attempt it here. For however it may be, and conceding that there was no novation, the new note is a new contract, (Story on Promissory Notes, Sec. 104) and when given since the adoption of the constitution of 1868, and payment is attempted to be enforced by means of a judgment and execution, the defendant has the right to claim his homestead against such a demand.

Our conclusion therefore is that the Wilson and Duke's judgments founded on notes taken in renewal of pre-existing notes, are new contracts, and subject to the defendant's right of homestead.

The defendant is entitled to his homestead against all the judgments the executions upon which were in the hands of the sheriff at the time of the sale, except those in favor of P. F. Patton, administrator, Summey, administrator, and T. J. Lenoir.

How then is the fund to be applied? Our opinion is, and we so decide, that in the first instance the sheriff shall reserve one thousand dollars for the homestead, and then apply the residue to the judgments according to the priority of their docketing; but as this will exhaust the fund before reaching the judgment in favor of T. J. Lenoir, as that is privileged against the defendant's right of homestead, and the defendant will be entitled to what remains. But as he will be entitled to hold it only during his life, the remainder will be subject to the lien of the judgments as if it were land. The defendant may, if he shall choose to do so, give bond and security to such person as the judge of the superior court of Buncombe County may designate to secure the return (324) of the amount upon his death to be a applied to such judgment or judgments as shall remain unsatisfied according to priority of docketing, or a reference may be ordered by the judge of the superior court of Buncombe County to ascertain the value of the life interest of the defendant, Patton in the residue of the one thousand dollars, after satisfying the Lenoir judgment. but in ascertaining the value of his life interest, the homestead should be estimated at one thousand dollars, as the defendants would have been entitled to that amount for his homestead against the judgments founded upon new notes, if the amount had not been reduced by an application of a portion thereof to the Lenoir judgment.

Lest it may be supposed we have overlooked the point raised in the argument before us with regard to marshalling the fund, we take occasion to say, that in our opinion that rule of equity has no application to a case where the homestead is involved. It is a "consecrated right" granted by the construction, and is an equity superior to all other equities. "See Butlerv. Stainback, ante, 216.

Let this be certified to the superior court of Buncombe County that proceedings may be had in conformity to this opinion.

J. W. Wilson and the Bank of Statesville must pay the cost of this appeal.

Error. Modified.

Cited: Albright v. Albright, 88 N.C. 241; Lee v. Bishop, 89 N.C. 260;Miller v. Miller, 89 N.C. 404; Hinson v. Adrian, 92 N.C. 125; Arnold v.Estis, 92 N.C. 167; McCanless v. Flinchum, 98 N.C. 373; McCracken v.Adler, 98 N.C. 403; Morrison v. Watson, 102 N.C. 178; Long v. Walker105 N.C. 101, 115; Leak v. Gay, 107 N.C. 476; Vanstory v. Thornton112 N.C. 209 Brown v. Harding, 171 N.C. 688; Duplin County v. Harrell,195 N.C. 446; Farris v. Hendricks, 196 N.C. 442.

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