Mayho and Parker v. . Cotton , 69 N.C. 289 ( 1873 )

The defendant, Cotton, owned two pieces of land four miles apart, the one called the Mansion, on which he resided, and which is claimed in this action, and the other called the Swamp Place. Both were sold under execution on 6th March, 1869. The plaintiffs purchased the Mansion. The defendant claims a homestead in it.

On the 2d March, 1869, defendant proceeding under the Act of 22d August, 1868, then in force, (Acts 1868, ch. 43,) applied to a Justice to have his homestead laid off in the Swamp Place, which was done, the return of the freeholders being dated 4th March. It does not appear when the return was registered.

The grounds on which the defendant now claims a homestead in the Mansion, as we understand them, are:

1. That as the law then stood under the Constitution and Act of 1868, he was obliged to take his homestead in the land on which he resided, and any proceeding to have it laid off elsewhere was void, at least unless his wife joined in the application.

2. That as the sheriff conveyed by his deed to the purchaser of the Swamp Place the whole estate of the defendant without an express exception of the homestead, the defendant was not allowed a homestead in that place.

It may be inferred from the language of the Constitution that its framers supposed that the debtor would take his homestead in the dwelling which he inhabited and the surrounding lands. But his choice is not positively restricted to that, nor to contiguous lands. It might frequently happen that if so restricted, a debtor might not be able to get a homestead of the permitted value, when by taking lands not contiguous to his dwelling he could do so. Was a debtor to be restrained and maimed in his homestead, and the intention of the Constitution defeated by an accident of that sort? The lands although not contiguous might be very near, and the clear intention of the Constitution was to exempt a certain value What difference could it make to a creditor whether the assignment were in one place or another, so that the value of the exemption was not increased? The Legislature following out the Constitutional intent, and regarding the value of the exemption as the only thing material, soon removed all doubt by enacting that a homestead might be assigned in tracts not contiguous. As soon as it was established that a man owning a dwelling worth $500 could take take that, and also land elsewhere worth $500 for his homestead, it became evident that no reason of justice or convenience prohibited him from taking his homestead to its full value in the latter place and giving up the former to his creditors if he so selected. It is true the homestead in this case was assigned before this power was expressly established by legislation; but it existed under the Constitution and the Act of 1868, at least to the effect that the assignment of a homestead in a place other than the residence, at the request of the debtor was not void as to him. In this case the defendant received his homestead in the Swamp Place; that the sheriff did not refer to it and exclude it from his deed, was not material. A sheriff's deed passes only what he may lawfully sell. If, upon the compromise with the purchaser afterwards, the defendant did not obtain the full value of his homestead right it was his own folly. It is to be presumed that he did. By so receiving it and by his representations to the plaintiff when he purchased the land now sued for, the defendant is estopped from claiming a homestead in this land. If taking a homestead in the Swamp Place was illegal in the sense of being unauthorized, the defendant cannot avail himself of his own illegal act to obtain two homesteads, as in effect he would if he could defeat the plaintiff's action. Neither is it material that the wife of defendant did not by deed assent to his receiving a homestead in the Swamp Place. Sec. 8, art. 10 of Constitution applies only to a conveyance of the homestead after it has been laid off.

PER CURIAM. Judgment affirmed.