Shoaf & Co. v. Frost , 123 N.C. 343 ( 1898 )

The history of, and the facts in this case, will be found in same case reported in 116 N.C. 675, and 121 N.C. 256. Pursuant to the opinion of this Court, the value of the tract of land, (344) which had been set apart by the commissioners, was found by the jury to be $2,000, and this Court held that the verdict was conclusive in that respect and directed that a commissioner be appointed to divide said land into two equal parts, one part to be selected by the homesteader as his homestead. The defendant now moves on affidavit that the order to reallot his homestead shall contain a provision that the appraisers take into consideration any material depreciation in the value since 1894 when the verdict of the jury was rendered. This proposition we declined to adopt in the second opinion above cited, and pointed out by reference the defendant's remedy if depreciation has taken place. The defendant has remained in possession of the whole tract, and to grant his motion now would in effect be a revaluation, and might differ from the finding of the jury, which we have said must stand. It would seem that when the defendant has accepted the homestead, valued at $1,000 by the jury, then he may consider the question of depreciation, but not in this action, nor out of the excess laid off in this proceeding, as the creditors may in the event it has appreciated.

Affirmed.

Cited: S. c., 127 N.C. 307.

(345)