Whitehead v. . Spivey , 103 N.C. 66 ( 1889 )

We think that his Honor erred when he told the jury that the (70) sheriff's deed for the land in controversy was inoperative, and did not vest the title in the plaintiff, because the two other tracts allotted to the defendant as a homestead were valued by the appraisers in the aggregate at only seven hundred and sixty-six dollars.

In the case of Spoon v. Reid, 78 N.C. 244, the facts were that the plaintiff owned a tract of land, on which he lived, and two other tracts. He allowed his homestead to be allotted in the two tracts, and conveyed his home place to his daughter to defraud creditors.

The transcript in that case shows, also (what does not appear in the reported case), that the two tracts allotted were valued in the aggregate at only five hundred dollars. In delivering the opinion of the Court,Justice Reade says: "Without affecting the conclusion at which we have arrived, it may be conceded that he had never conveyed his home place in fraud nor at all, but that he owned it, and lived upon it at the time of the levy and sale, and yet he could not recover, for when the allotment was made to him in the other two tracts by the sheriff's appraisers, and he took no exceptions thereto and no appeal therefrom, and disclaimed title to the home place and claimed no homestead therein, he assented to and was bound by the allotment, and the same is an estoppel of record against him." The principle is sustained, too, by Burton v. Spiers, 87 N.C. 87.

It would be unreasonable and productive of endless cheating to concede to the debtor the power, after a fraudulent alienation of the most valuable portion of his land and the selection of two small tracts, worth less than one thousand dollars, to be allotted by the appraisers, to change his plans when the fraud is exposed and get, as against his creditors, all the advantage he would have had if he had, in the (71) exercise of his right, selected his homestead in the tract he attempted to convey.

The statement of the proposition shows that the law, if so construed, would encourage such efforts to defeat creditors, because the debtor would take the chance of success without incurring the least risk of paying any penalty in case of exposure.

But the report of the appraisers, being admitted to be in regular form, operates to estop the defendant from claiming any additional allotment in this Court, whether the deed to his son was valid or void. If it was not a fraudulent conveyance, of course the plaintiff could not recover.

As the defendant cannot, by reason of the estoppel, claim that any portion of the land in controversy shall be added to his homestead, we find it unnecessary to follow counsel in mere speculations as to whether land, acquired after an allotment like this, could be added to make up the full value of one thousand dollars, and, if so, whether it would be done only on the petition of, or at the request of, the owner. We must meet the numerous questions presenting new phases of homestead litigation, and decide them, when they are properly raised.

The judge ought to have allowed the jury to determine whether the deed executed by the defendant to his son was fraudulent and void, and should have instructed them, if they found it was executed to hinder, delay and defeat creditors, to find the first issue for the plaintiff.

There was error, for which a new trial will be awarded.

Error. Venire de novo.

Cited: Hughes v. Hodges, 102 N.C. 264; Thurber v. LaRoque, 105 N.C. 314;Springer v. Caldwell, 116 N.C. 523; Marshburn v. Lashlie, 122 N.C. 240;McGowan v. McGowan, ibid., 168; Oates v. Munday, 127 N.C. 446;Bonner v. Stotesbury, 139 N.C. 8; Cox v. Boyden, 153 N.C. 525.

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