18 S.E. 510 | N.C. | 1893
The plaintiff claimed under a sheriff's deed, made in pursuance of a sale of the locus in quo, made by S. H. Taylor, sheriff of Surry County, to satisfy an execution in his hands against the property of defendant Rufus Roberts.
The defendants resisted plaintiff's recovery, and claimed that the sheriff sold the property without first having allotted homestead to the defendant, Rufus Roberts, and that the title was therefore void.
The plaintiff contended:
"1. That under the admissions filed of record there was no necessity for laying off homestead before the sale.
"2. That defendant, Rufus Roberts, was not entitled to have homestead allotted him, because at the time of said sale by the sheriff he was not a resident of this State."
The admitted facts filed of record are as follows:
(423) "It is admitted that at the time of sale by sheriff of the lot in controversy, that the lot was a lot on which there was a cabinet shop, one hundred feet by two hundred feet, in Mount Airy, and unoccupied, and that the defendant owned and occupied as a residence, if not a resident of Georgia, the Sulphur Springs Tract, of seventy-five acres of land, four miles from Mount Airy, and that this tract was worth $5,000 or more."
The following issue was submitted:
"At the time of the sale of the locus in quo," on 27 April, 1881, "was the defendant Roberts a resident of North Carolina?"
Upon this issue alone there was a large amount of testimony offered by the plaintiff, tending to show that prior to said sale, the defendant, Rufus Roberts, had sold off at auction and privately all of his real estate, consisting of plantations and town lots in Mount Airy, except the lot in controversy and two or three other lots sold on same day by the sheriff, and except the Sulphur Springs tract, which tract he was offering for sale; also tending to show that he had bought real estate in Milledgeville, *311 Georgia, and erected buildings thereon and farm near by; also evidence of declarations made by Roberts to various persons, both before and after the sale, claiming Georgia as his home, and disclaiming North Carolina, declaring he could not be induced to live here again.
The defendant testified in his own behalf that, while he went into the mercantile and farming business in Georgia, he had never abandoned North Carolina as his home, and offered much evidence to corroborate him and to sustain the affirmative of the issue.
There being no exception taken by plaintiff to evidence, it is deemed unnecessary to set it out in full.
After the close of the evidence and the argument of counsel, the judge charged the jury, in writing, as follows:
["The burden of satisfying you by a preponderance of testimony that the defendant Roberts was a nonresident at the time (424) of the sale is thrown upon the plaintiff.] The only issue you have to try is whether, at the time of the sale of the locus in quo, the defendant Roberts was a resident of the State of North Carolina.
["A resident denotes one who has a permanent dwelling to which the party, when absent, intends to return. The residence of a person continues until he acquires another by actually removing to another country with the intention of remaining in the latter altogether for an indefinite period or a definite period. Two things must concur to constitute residence: first, occupancy; secondly, the intention to make it a home. If these two concur, it makes no difference how short his residence may be in the new residence.]
"The words `a resident of this State,' employed in the Constitution, Art. X, sec. 2, in respect to homestead, have a more restricted meaning than that usually given to domicile; to entitle a person to the constitutional exemption he must be an actual and not a constructive resident. Where the facts, show an actual removal from the State, even for a definite period, the person so removing ceases, so long as he remains absent, to be a resident of the State in respect to his right to a homestead, although he may have the intent to return and resume his residence.
["So, if you find that defendant Roberts actually removed to the State of Georgia for a definite period or an indefinite period, and had his home there, then that would be his residence, and he would not be entitled to the homestead in this State, and you will answer No.]
["But if he only went to Georgia for the purpose of trading in the winter and returning in the spring to his home in North Carolina, and did not actually move to Georgia and settle there as his home, then he would be entitled to a homestead in this State, and you will answer the issue Yes."] *312
The jury found the issue "Yes," and the plaintiff's counsel (425) moved the court for a judgment for the possession of the land upon his sheriff's title and the admission field of record insisting that there was no necessity, under the law, for the allotment of a homestead before the sale.
Motion refused by the court, and plaintiff excepted.
The plaintiff then moved for a new trial because of error in the instructions to the jury given by the court, and assigned as erroneous that part of the instructions appearing in brackets. Motion overruled, and plaintiff appealed. Two questions are raised by the appeal: (1) If it be admitted that the defendant, Rufus Roberts, was a citizen of North Carolina, could the sheriff lawfully sell, under the execution issued against him upon a judgment recovered on a debt created since 1868, a tract of land belonging to him other than that upon which he lived and distant four miles from it, when no homestead had been allotted to him? (2) Was the definition of "a resident," given in the instruction of the court to the jury, because of its inaccuracy or inconsistency, calculated to mislead them in passing upon the issue submitted?
While it may have been supposed by the framers of the organic law that a debtor would usually elect to have his homestead allotted in his dwelling-place and the surrounding land, "his choice is not positively restricted to that, nor to contiguous land." Mayho v. Cotton,
We see no error in the last paragraph of the charge. If the defendant did not actually remove to Georgia, and make it even a temporary home, but visited that State for the purpose of trading in the winter, and returning to his home in North Carolina in the spring, he acquired none of the advantages and must be subject to none of the disadvantages there incident, in contemplation of law, either to being a resident or domiciled during such a sojourn. Though he may have been accompanied by his family, he would not have been entitled to the benefit of similar exemption laws as a resident of Georgia and, adopting the test suggested by this Court, we must conclude that the right of exemption ceases here, *314
when, by reason of a change of residence, it begins in another State, or when a similar occupancy of a place of residence by one coming from a sister State to this State would entitle such person to the benefit of section 2, Article X, of our Constitution. Lee v. Moseley, and Munds v.Cassidey, supra; Baker v. Leggett,
It is not necessary to a decision of the questions involved in (428) this case to advert to the difference in the character of the residence or domicile, which would entitle one to the right of suffrage, protect him against attachment, or qualify him to administer on an estate. Boyer v. Teague,
The onus was upon the defendant to show that a homestead had not been allotted to him, as in the absence of any evidence beyond the proof of judgment, execution, levy, and sale, all apparently regular, the presumption would have been in favor of the validity of plaintiff's title.Mobley v. Griffin,
We conclude, therefore, that in view of the admitted fact that defendant had resided in Surry County, the burden of showing that he had subsequently become a resident of another State when his land was sold rested upon the plaintiff, and there was no error in so instructing the jury.
Affirmed.
Cited: Jones v. Alsbrook,