87 N.C. 83 | N.C. | 1882
The question presented by the appeal is, does the lien given by the act of 1869-70, (Bat. Rev., ch. 65) to one who furnishes materials, which are used in buildings or improvements upon land covered by the homestead of the owner, supersede the right of homestead therein?
The right to a homestead not exceeding one thousand dollars in value, is given by the constitution to every resident of the state who owns and occupies land, and it is declared to be exempt from execution *81 on the final process obtained on any debt, but not from sale for taxes, or for payment of obligations contracted for the purchase of said premises. Art. X, Sec. 2. And it is further declared, that the provisions of section one and two of this article, shall not be so construed as to prevent a laborer's lien for work done and performed for the person claiming such exemption, or a mechanic's lien for work done on the premises. Art. X, Sec. 4.
So it is to be seen that these four exceptions to the exemption (86) of the homestead are allowed by the constitution, viz: the liability to sale for taxes, the payment of obligations contracted for the purchase of the premises, and the lien of laborers and mechanics; and they are the only exceptions designated in that instrument. We are therefore unable to perceive how it can be contended that the lien for materials furnished, given by an act of the legislature, can constitute a lien upon land covered by the homestead when no such lien is anywhere mentioned in the constitution.
If it had been the intention of the framers of that instrument to make the lien for materials furnished an exception to the general exemption of the homestead from execution, etc., they would have so declared in language as explicit as that used in reference to the exceptions mentioned; but as they did not do so, the conclusion is that they did not intend to allow any other exceptions than those expressly designated. Expressio unius exclusioalterius.
And the homestead being a right created and vested by the constitution, with the exceptions to its exemptions defined and enumerated in the same, it was not in the power of the legislature to impair or abridge its efficacy for the purposes of its creation by adding other exceptions. Top hod that the legislature can exercise such a power, would be conceding to it the right to override the constitution and frustrate the intention of its framers.
We think it is too plain to admit of controversy that the act of 1869-70, so far as it may have been intended to give a lien for materials furnished upon land set apart and allotted as a homestead, is in violation of the constitution, and we therefore hold that the charge of his Honor to the jury was erroneous, and that his judgment be reversed.
Let this be certified to the superior court of Pender County that avenire de novo may be awarded.
Error. Venire de novo.
Cited: Broyhill v. Gaither,
(87)