W. E. Springer & Co. v. Colwell , 116 N.C. 520 ( 1895 )

Except for sale for taxes and for payment of obligations for the purchase of the premises, every homestead owned and (523) occupied by any resident of this State and not exceeding the value of one thousand dollars shall be exempt from sale under execution or other final process obtained on any debt. Art. X, sec. 2, of the Constitution.

Section 519 of The Code provides that if the judgment debtor entitled to homestead shall be dissatisfied with the valuation and allotment of the appraisers, he, within ten days thereafter and before sale under execution of the excess, may notify the adverse party and the sheriff having the execution in hand, and "file with the clerk of the Superior Court of the county where the said allotment shall be made a transcript of the return of the appraisers; and thereupon the said clerk shall put the same on the civil issue docket of said Superior Court for trial at the next term thereof as other civil actions." It was decided by this Court in the case of Whitehead v. Spivey, 103 N.C. 66, that an allotment of homestead to the debtor of lands of value less than one thousand dollars, regular in form and unobjected to within the time allowed by law, was an estoppel of the debtor from claiming any additional allotment in other lands which he had at the time of the allotment. That opinion followed in the line ofBurton v. Spiers, 87 N.C. 87, and Spoon v. Reid, 78 N.C. 244. In all of these cases, however, the several judgment debtors at the time of the allotment owned no lands outside of the counties in which they resided. In the case before us the defendant owned land in Sampson County, where he resided, valued by the appraisers at $625, and he also owned other land in Duplin County.

Now the question is, does the law applied to the facts in Whiteheadv. Spivey fit the facts of the present case? We do not think that it does. Neither the Sheriff nor the appraisers had the right to go out of Sampson into Duplin County to allot to the defendant any part of his homestead in lands situated in the latter county, and they gave him all the real estate he owned in Sampson County. What then did he (524) have to object to, except to the over-valuation of the land, about which he made no question? Then, too, what would the objection have amounted to if he had made it? Suppose he had objected that the Sheriff and appraisers did not go into Duplin and allot to him the balance of his homestead in lands belonging to him in that county, would not the objection have been a vain thing, seeing that they had no power to do so?

But, there is another view which is conclusive of the matter. If the defendant, as the plaintiff contends, was required to make some sort of exception or statement and give notice of it to the adverse party and to the Sheriff to the effect that he had other lands in Duplin County which he wished to have allotted to him to complete his homestead, and the clerk of the Superior Court had put the same on the civil docket of the Superior Court for trial at the next term, the defendant would have been met by the objection of wrong venue. Section 190 of The Code declares that actions for the recovery of real property, or of any estate or interest in them, or for the determination in any form ofsuch right or interest, and for injuries to real property, must be tried in the county where the real estate is situated. The defendant, it seems, took the precaution to have a copy of the homestead proceedings, under the certificate and seal of the Clerk of the Superior Court of Sampson, filed with the Clerk of the Superior Court of Duplin, and had also a copy served on the Sheriff of the last named county, before he made the sale, accompanying the service of the paper on the Sheriff with the request to have allotted to him enough of his lands in Duplin County to make up the full amount of his homestead.

There is no error in the judgment of the court below and the same is

Affirmed.

Cited: Baruch v. Long, 117 N.C. 511; Marshburn v. Lashlie, 122 N.C. 241.

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