Gardner v. . Batts , 114 N.C. 496 ( 1894 )

CLARK, J., dissents arguendo. Upon the facts agreed his Honor rendered judgment that "the sheriff of Wilson County proceed to allot to the said John R. (499) Batts his homestead in the lands owned by the said John R. Batts at the time of the rendition of the judgment herein, and afterwards conveyed to him by J. L. Batts and by him conveyed to the said Ella Batts," and "that there be allotted to the said E. B. Batts in the lands sold by him to J. L. Batts, containing 152 acres, adjoining the lands of Isaac Page and others, the deficiency" in his allotment.

The defendants excepted to and appealed from so much of the foregoing judgment as directed the allotment of a homestead to J. R. Batts out of the lands now owned by his wife and of the (500) allotment of the deficiency of the homestead of E. B. Batts out of the land conveyed by him to J. L. Batts.

To so much of said judgment as confirms the allotment of the homestead of E. B. Batts in the 130-acre tract the defendant J. L. Batts excepted and appealed. These cases in no material respect differ from Adrian v. Shaw,82 N.C. 474, and 84 N.C. 832. The principle there announced, not the first time, for it is the same in Littlejohn v. Egerton, 77 N.C. 379, is: "The Constitution vests the homestead right in the resident owner of land and authorizes him to convey it. The vendee must take it with the same quality annexed that had attached to it in the possession of the vendor; that is, to be exempt from execution for the debts of the vendor, at least during his life."

Fitting this principle to the case then before the Court, it was held that where Jackson, a resident of this State, was the owner of only one tract of land, and that worth less than one thousand dollars, and a judgment was docketed against him, and he afterwards, and before execution issued against him or a homestead was laid off to him, sold and conveyed said land, his wife joining in the deed with all the formalities prescribed in the Constitution for the conveyance of a homestead, the purchaser acquired a good and indefeasible title for the life at least of Jackson, against the creditors of Jackson, notwithstanding he may have since removed from the State.

It was there said by Mr. Justice Ashe: "The law, when it authorizes one to sell his homestead, would be untrue to itself and the (501) obligations of justice if it were to allow the owner to sell it, receive a full and fair price, and then leave it subject in the hands of his vendee to the satisfaction of his debts."

While there has been much criticism of the definitions of homestead given in this and other cases, which are collected in Vanstory v. Thornton,112 N.C. 196, this principle has always been recognized and followed in our decisions with the exception of the case of Fleming v. Graham,110 N.C. 374, where a different principle was announced (although it was unnecessary so to hold in order to reach the conclusion concurred in in that case that there was no error), "that a valid conveyance of land before the allotment of a homestead is a waiver of the right of homestead as to the land thereby conveyed, and the vendee takes it subject to the lien of any judgment docketed prior thereto, but the vendor may subsequently have a homestead allotted to him in other land."

But upon a very serious consideration the Court in Vanstory v.Thornton, supra, recalled these expressions and stated the law to be as it had often been declared, that the homestead, by whatever definition it may be characterized, is salable or assignable, and the purchaser can hold the land to which it pertains to the exclusion of judgment creditors during its existence. By virtue of the assignment " he gets into the shoes of the homesteader." "He has bought the privilege of so standing, the privilege of personating, before the law and the judgment creditor, the homesteader himself quoad the homestead land." The matter was fully discussed in this case, the views of a majority of the Court being presented in the opinion of Mr. Justice Burwell and the contrary view by Mr. Justice Clark in a dissenting opinion. It will be unnecessary, therefore, to review the numerous decisions of this Court to show that whatever differences may have arisen upon (502) the application of principles to ever-varying phases, as they have from time to time been presented on this point, there has been "no variableness, neither shadow of turning," except in the one case last named, which this Court, for the sake of stability of decision and preservation of rights acquired thereunder, hastened to recall.

Confining ourselves strictly to the questions before us and applying recognized principles to them: J. R. Batts had a vested right to a homestead of his own selection, the quantity to be laid off according to law in the lands owned by him at the time of the docketing of the judgment. A conveyance by him and his wife under the formalities prescribed by law of those lands or any part thereof was a conveyance of such interest as he had therein. It did not release said lands from their exemption from sale under execution at the instance of his judgment creditors. And upon the issuing of execution against his property he had the right to select such portion of said land as he chose to be laid off to him by the appraisers, not exceeding $1,000 in value. The fact that such exemption inured to the benefit of the purchaser from him cannot affect or injure the rights of the judgment creditors. If he had made no conveyance at all, or if he had attempted to make a fraudulent one, his homestead right would not have been impaired, nor would the rights of his judgment creditors have been changed. He might with the concurrence of his wife convey his homestead right before the homestead had been laid off to him, as in Adrian v. Shaw, and his grantee would be entitled to precisely the same rights as the homesteader himself possessed. It might not be a difficult task to show that some at least of the alleged discrepancies in decisions upon this subject are more seeming than real and arise more because of the language used in (503) the application of principles to particular cases than in the change of the principle itself as announced by the eminent members of this Court in the early construction of the Constitution and laws in their application to the homestead exemption.

We are persuaded that whether the conclusions reached have been entirely satisfactory to all, they are at least well understood, and that it will be infinitely better to adhere to them strictly than to unsettle the law by and endeavor to change that which is now settled into a system under which counselors may advise and rights of property may be acquired and preserved with reasonable certainty.

The case of E. B. Batts stands upon the same footing and is governed by the same principle. Leaving out of view the mortgaged land which was sold under the mortgage, when the judgment was docketed against him he had a tract of 152 acres, which he sold to J. L. Batts and received in part payment therefor another tract of 130 acres. This latter tract was laid off to him at $600. He demands that the deficiency be made up out of the 152 acres sold by him to J. L. Batts. While this latter tract was owned by the judgment debtor, E. B. Batts, when the judgment was docketed against him, it was not a necessity that the whole exemption should attach to it, for no homestead had yet been laid off. By section 2 of Article X of the Constitution the owner is entitled to select the land to be exempted for him as a homestead. By virtue of section 435 of The Code the docketing of a judgment against him constituted a lien on his real property in that county which he had at the time of the docketing, or which he might acquire at any time within ten years thereafter. The Constitution as above referred to secured him the homestead exemption in such part of this land as he might select; there was nothing, as far as we are informed, in his contract with J. L. Batts which bound him to select first the 152-acre (504) tract for the exemption. He seems to have exercised his constitutional right. As the 130-acre tract was appraised at only $600 he is entitled to have a sufficient quantity of the 152-acre tract laid off to him to make up the deficiency, and this part by virtue of the conveyance to J. L. Batts inures to his benefit. The fact that the homesteader is an unmarried man does not affect his rights.

Affirmed.