76 S.E. 482 | N.C. | 1912
The facts are sufficiently stated in the opinion of the Court by MR. CHIEF JUSTICE CLARK. *366 The plaintiff obtained judgment against Laban E. Hoke, the intestate of defendant, in Alexander County, 3 July, 1888, which was docketed in Caldwell, 18 November, 1888. Execution issued 22 March, 1889, from Alexander County to the sheriff of Caldwell, who summoned three appraisers on 25 April, 1889, whose allotment to said Hoke of his homestead included a tract which is described in their return as "First tract, valued at $36, known as the Fisher land." This is the tract which the plaintiff is seeking to subject to satisfaction of his judgment. The appraisers' report was returned to the clerk of Caldwell Superior Court, in whose office it was found 16 August, 1909, in a metallic filing case, labeled "Homesteads." The sheriff sold all the lands of said Hoke not embraced in the appraisers' return on 5 August, 1889, the plaintiff being the purchaser thereof.
On 21 September, 1889, said Hoke executed a deed to the defendant Felix Abernathey for the "Fisher land," which had been allotted to him as a part of his homestead. Hoke died 16 July, 1909, leaving him surviving his widow and two children, both of whom are of age. This action was begun 4 October, 1910, to subject the "Fisher tract" to payment of plaintiff's judgment, and plaintiff asked that the court decree the deed from Hoke to Abernathey void as against the lien of the plaintiff's docketed judgment; that Abernathey be directed as trustee to convey to the purchaser at execution sale and that defendant administrator be authorized to sell the land and apply the proceeds to the satisfaction of the plaintiff's judgment. The court held that Abernathey had no actual notice of the allotment of the land in question as a part of Hoke's homestead exemption, and that the constructive notice is insufficient because the description was not definite and the return (449) of the appraisers was not filed in the judgment roll of the action, citing Bevan v. Ellis,
Abernathey bought with notice of the docketed judgment against Hoke, and, of course, of the fact that all his land was subject to the lien of the judgment. If at the time Abernathey received his deed the lien of the judgment had expired by the lapse of ten years, then it would be admissible for him to claim that the statute of limitations had not been *367 suspended as to the judgment because the property was not embraced in a valid allotment of the homestead. But he bought subject to the lien of the judgment and has been protected for twenty years from execution issuable thereon by virtue of such exemption. Had there been any informality as to the allotment of the homestead, it was for the plaintiff, not the defendant, to claim benefit from its invalidity.
It is true that under the act of 1905, ch. 111, now Revisal, 686, the homestead exemption ceased as to this tract of land when the homesteader conveyed it to Abernathey. But the act specifically provides that it shall not have any retroactive effect; therefore, the land did not become subject to plaintiff's execution till 1905, and the defendant has neither held the land seven years under color of title nor is the lien of the judgment barred by the ten years statute of limitations, and, indeed, the plaintiff has not pleaded either statute.
The plaintiff was entitled to have the land subjected to the payment of his debt. He might have proceeded more simply by selling under his execution.
Reversed.
Cited: Brown v. Harding,
(450)
