Flora v. . Robbins , 93 N.C. 38 ( 1885 )

It is admitted as a fact that the allotment made by the appraisers "has the effect to defeat the defendant in obtaining a homestead."

How this effect is wrought does not, in terms, appear, but the plain implication, from the facts stated in the exception of the defendant, is that the land allotted as homestead will not more than discharge the two mortgage debts that, as is admitted, constitute a first lien upon it.

If this is so, the appraisers ought not to have set apart the land embraced by the mortgage, especially as the defendant had other land unaffected by any lien, so far as appears, except the lien of the judgment upon which the execution of the plaintiff issued. The law does not intend that the defendant shall have the empty form of a homestead, but the substance as well, when he has land that may be laid off to him for that purpose, and this without reference to whether it embraces the dwelling house or not. Generally the dwelling house and buildings used therewith must be embraced, but there may be reasons why this cannot be so, as when the land on which they are situated is encumbered for all or more than its value. This is the spirit if not the letter of the Constitution and the statutes in execution thereof.

A judgment debtor may have homestead in lands that he has mortgaged, whether he has the legal right of redemption or the equity of redemption, but it does not follow, if such lands embrace his dwellings and buildings used therewith, that he must have homestead in such lands and none other, although he may have other lands free from encumbrance, or subject to only partial encumbrance. Indeed, in the (41) absence of any encumbrances, it is optional with him whether he will select a lot in a city, town or village, owned and occupied by him, not exceeding in value $1,000, in lieu of the homestead embracing the dwelling house and other buildings. In this case the land of the defendant levied upon, and which the plaintiff seeks to sell to satisfy his judgment, is a lot situate in a town, and he had the right to select that, or a part of it not exceeding in value $1,000, in lieu of the land on which was situate his dwelling house and other buildings, even though these had been free from encumbrance. But as this land was encumbered to the extent of its full value, he had the right to have homestead set apart to him in any land he had other than that. This is so, because the law favors the homestead. The debtor, when need be, may have it allotted to him in any land owned by him available for the purpose.

It does not appear affirmatively, as regularly it ought to do, that the defendant at the time the appraisers proceeded to lay off the homestead informed them of the encumbrance upon the land, and selected other land that he desired to have laid off to him, but we think, if this were really necessary, that it sufficiently appears by implication that he did. He excepted to their action, and upon the ground that the land laid off to him as and for his homestead was encumbered by mortgages for its full value. He had other land — a lot in the town of Windsor — and the reasonable inference is that he selected that, or so much of it as would not be of greater value than $1,000.

But if he failed for any cause to give notice at the time the allotment was made, he gave notice of his objection and excepted shortly afterwards, as it appears from the fact recited in the sheriff's return on the execution, that notice of the appeal was served upon him on 27 October, 1884, and he did not make sale of the land levied upon as the excess of the homestead. The defendant objected and excepted before the sale of the land was made, and when it appeared to the court that the allotment of the homestead was practically nugatory — that it was a hollow form — it should have set it aside.

The appraisers, following the words of the statute, may have (42) thought that they were required to lay off the homestead in such way as to embrace the dwelling house and the buildings used therewith, but no matter what consideration controlled their action, it deprived the defendant of his homestead, and he applied within time to obtain relief.Shepherd v. Murrill, 90 N.C. 208.

There is error. The judgment of the court confirming the report and return of the appraisers must be reversed, and the exception of the defendant sustained. To this end let the opinion be certified to the Superior Court of the county of Bertie.

Error. Reversed.

Cited: McCracken v. Adler, 98 N.C. 403; Fulton v. Roberts, 113 N.C. 425;Bank v. Robinson, 201 N.C. 797; Assurance Society v. Russos, 210 N.C. 125.