Fulton v. Roberts
113 N.C. 421
N.C.
1893
Check Treatment
Avery, J.:

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, 69 N. C., 289; Hughes v. Hodges, 102 N. C., 236; Flora v. Bobbins, 93 N. C., 40. The Constitution guarantees the right of selection between different tracts in express terms, if, as suggested in Mayho v. Cotton, supra, the power would not have been implied neces*426sarily in the grant of exemption in a home worth $1,000. Constitution, Art. X., § 2.

The sale having been made to satisfy a debt created since the homestead exemption became a part of the Constitution, was void, therefore, if the defendant was, as a resident of this State at that time, entitled to the benefit of that privilege. Long v. Walker, 105 N. C., 90. It is true that the general definition of “a resident” given by the Court was incorrect, and embodied the very terms in which this Court has defined “ domicile,” which is a much more comprehensive term. Horn v. Horn, 9 Ired., 99; Plummer v. Brandon, 5 Ired. Eq., 190. Generally, one who has acquired a domicile at a given place must have resided there with the intention of making it a home, and the fact that he temporarily resided elsewhere, with the purpose of returning to such home, would not impair any right growing out of having become domiciled there. Fleming v.Stroley, 1 Ired., 305; Commissioners v. Commissioners, 101 N. C., 520. But, however erroneous the general proposition may have beeu, the more specific instruction as to the “ restricted meaning of the words a resident,’ ” in Article X., § 2 of the Constitution, must of necessity have been understood by the jury and followed in answering the issue submitted to them. If the jury were made to comprehend what was meant by the words as used in the Constitution in reference to the right of exemption, and that their inquiry was limited to ascertaining whether the facts brought the defendant within the definition of “a resident,” as the words are there used, the confounding of domicile with residence in the abstract proposition was a harmless error. The instruction which bore directly upon the issue was as follows: “The words ‘a resident of this State,’ employed in the Constitution, in respect to homesteads, have a more restricted meaning than is usually given to‘domicile.’ To entitle a person to a constitutional exemption, he must be an actual and not a constructive resident. Where the facts show an actual *427removal 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 rights to homestead, although he may have the intent to return and resume his residence.” Although a juror might have thought that, for some purposes, “ a resident” might mean one who is domiciled, he could not fail to understand from the foregoing instruction that one who actually removed from the State for a limited period, even animo revertendi, would forfeit his right of exemption by failure to occupy the place protected by the Constitution for the purpose of furnishing him a home. Indeed, the explanatory proposition embodies substantially the language used by the Court in Lee v. Moseley, 101 N. C., 311, and in Munds v. Cassidey, 98 N. C., 563, to draw the distinction between a domicile, as understood in reference to the right of suffrage or of administration, and a resident, such as was essential to the retention of the right of exemption under the Constitution.

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, 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, 98 N. C., 304.

*428It is not necessary to a decision of the questions involved in 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. Teagve, 106 N. C., 576; Wheeler v. Cobb, 75 N. C., 21 Hannon v. Grizzard, 89 N. C., 115; Roberts v. Cannon, 4 Dev. & Bat., 256; Carden v. Carden, 107 N. C., 214; Abrams v. Pender, Busbee, 260.

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, 104 N. C., 112; Buie v. Scott, 107 N. C., 181; 2 Wharton on Ev., §§ 1318 and 1319. But as soon as it appeared in evidence that a homestead had not in fact been allotted, the presumption in favor of the regularity of judicial proceedings was rebutted, as it would have been if the same fact had appeared upon the face of the record. Mobley v. Griffin, and Buie v. Scott, supra. It would not have been incumbent on the plaintiff, in a case where the record showed that no exemption had been allowed, to negative the possibility of non-residence. But if it had not been decided in both of the cases cited that proof that no homestead was allotted upon what appeared, either from the date of the judgment or of the contract, to be a new debt, rebutted the presumption of regularity in the sale, another principle may be invoked, which is clearly decisive of the question as to the correctness of the charge. It was shown and admitted by both parties that the defendant had been a resident of Surry Count}*-, in the State of North Carolina, prior to his purchase of the property and engaging in mercantile business in Milledgeville, Georgia. That fact being settled, it was incumbent on the plaintiff to show that his place of residence was not still the same, because the law presumed the status once shown to *429continue (2 Wharton, supra, §§ 1285 and 1296), generally, and especially as to place of residence, and the duty resting upon a plaintiff to show his right to recover shifted therefore to Fulton, upon the rebuttal of the presumption in favor of the regularity in the sale, on which his prima facie case was dependent. The burden of showing a change of domicile, when it becomes material to do so, “ unquestionably lies on the party who asserts the change” (5 Am. & Eng. Enc., 865); and “it is presumed that the residence of a person continues to be in the place where it is proved to have been until the contrary is shown.” 17 Am. & Eng. Enc., 76.

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.