Gardner v. . McConnaughey , 157 N.C. 481 ( 1911 )

The facts are sufficiently stated in the opinion of the Court by MR. CHIEF JUSTICE CLARK. Execution having been issued upon a judgment taken before a justice of the peace, the sheriff, without levying upon the personal property of the defendant, summoned a jury of appraisers, who filed an itemized valuation of such property amounting to $740.62, and reported that, after deducting the $500 personal property exemption, defendant possessed $240.62 of property which was subject to sale under execution, but without specifying and setting apart the articles which should be exempt from sale under the execution, as required by Revisal, 697. The defendant filed exceptions to the report of the appraisers as provided by Revisal, (482) 699. At the term of the Superior Court next ensuing, the defendant moved to set aside the report of the appraisers as void, because it did not appear from the face thereof that there was any allotment of the articles set apart to the defendant as required by Revisal, 697.

The court refused to set aside the report and directed the matter to be rereferred to the appraisers to specify the articles to be allotted to the defendant, and refused to direct that the allotment should be made out of articles possessed by the defendant at the time of said allotment. The ruling of the judge was in effect that the defendant should take as a part of the allotment the articles of personal property which should have been consumed since the first assessment.

The report was void, because there were no articles specifically allotted to the defendant as his exemption, as required by Revisal, 695. The judge further erred in directing that the defendant should be charged with the articles which had been consumed or otherwise disposed of since the assessment, and also ignored the fact that other articles may have increased or depreciated in value since that date.

In Pate v. Harper, 94 N.C. 23, it was said: "We think the debtor is entitled to have his exemption ascertained up to and just before the process is executed by a sale. While the process is in the officer's hands in full activity the preliminary action of the appraisers is not conclusive, but remains in fieri, capable, at their instance, under the call of the officer, at least of correction and amendment. If property has been omitted which ought to have been put on the list, but was not known at the time to belong to the debtor, this could be done. The appraisers ought also to have the power, and we think do have it, to enlarge the exemption, so that none which should be exempt shall be sold from him. The mandate of the statute is that the officer shall make his levy upon the entire personal estate subject to seizure under execution, but, before he sells, to have so much of it set apart for the debtor, within the limit of value, as he may select, and when insufficient, all being below the value, such selection is unnecessary."

In Jones v. Alsbrook, 115 N.C. 46, the Court quotes the above, and adds that the judgment debtor is entitled up to the last (483) moment to have his exemption set apart before the sale, and that the same right belongs to the judgment creditor.

There having been no levy, and the allotment not having been made at all, and it not appearing that the defendant was given the opportunity to select the articles, the report was fatally defective and should have been set aside.

It should be noted that there is a material difference between the allotment of the homestead under Revisal, 687, which must be done "before levying upon the real estate," and as to which the levy must be only upon the excess (Revisal, 692), and the allotment of the personal property exemption, for the personal property must be levied upon, that is, taken in possession by the officer, and the personal property exemption is then allotted in the manner provided by Revisal, 695.

The homestead exemption is permanent unless there is a reallotment by reason of an increase in value in the manner provided by Revisal, 691. But the personal property exemption is to be reassigned, whenever, at subsequent dates, executions are levied. The reason is that the realty is fixed and stable, whereas the articles of personal property may be increased or diminished in quantity, between the levy of executions, especially so as to articles of food which are usually included in such exemptions.

The report of the appraisers should have been set aside and the sheriff should proceed to levy his execution, and the personal property exemption must be allotted out of the personal property in the hands of the defendant at the time of such allotment, the articles being selected by the defendant as provided by The Code. In Campbell v. White, 95 N.C. 344, it was held: Though the debtor's personal property exemption has been duly allotted, whenever it has been diminished by use, loss, or other cause, he has a right to have any other personal property he may have exempted up to the prescribed limit," Smith, C. J., saying that the Constitution, Art. X, sec. 1, is a continual mandate to the officer to leave so much of the debtor's personal estate untouched for his use, and, of course, the diminution from use, loss, or other cause must be replenished with other if the debtor has such, up to the prescribed (484) limits. It is plainly meant that when any final process against the debtor's estate is to be enforced, that much of his estate must be allowed to remain with him as not liable to sale."

Reversed.