20 S.E. 170 | N.C. | 1894
It is a resident of this State who is entitled under Art. X, sec. 1, of the Constitution, to have his personal property, to the value of $500, exempted from sale under execution. To carry out this provision of the Constitution, sec. 507 of The Code was enacted, (50) under the provisions of which section, whenever the personal property of any resident of this State shall be levied upon, and the owner shall demand that the same, or any part thereof, "shall be exemptfrom sale under such execution," appraisers are provided to lay off the exemption, "which articles shall be exempt from the said levy."
First, the levy; then the demand for the appraisement; next, the appraisement; and last, the exemption from the levy theretofore made, and consequently from sale under the execution of the property set apart.
In Pate v. Harper,
Surely the reason of the opportunity given to the judgment debtor up to the last moment to have his exemption set apart will apply with equal force to the judgment creditor, so that, if it be made to appear at the sale that the debtor is entitled to no exemption, the same will not be allowed. It follows that the issue tendered by (51) defendant was the proper one, and should have been submitted, the duty of the sheriff to levy being plain, but the question being whether he should have taken the proper steps, on request of the defendant in execution, to have laid off to her the personal property exempt from sale by the laws of the State. It being ascertained, then, that the time at which the exemption operated was that of the sale, the next question was, whether the defendant in execution was at that time a resident of this State. She testified that, at the time of the levy, she was a resident of this State; that she never went to Suffolk, Virginia, *36 to live; that she and her husband did not go there at all until three or four months after the levy (it is not stated whether this was before or after the sale), and then stayed only eight months, and returned to Edgecombe County, in this State, where they now reside. The cross-examination was directed to the question, whether she had not abandoned her residence in North Carolina and started to Virginia to engage in business. On objection, his Honor would not require her to answer as to her purpose in going to Virginia.
In this exception is, to some extent, involved the meaning of the wordresident, as used in the Constitution (supra), and at what time and under what circumstances one ceases to be. In Munds v. Cassidey,
In Fulton v. Roberts,
It will not be necessary to trouble ourselves with the distinction, sometimes very plain and at others most shadowy, if, indeed, there be any, between residence and domicile. It is well understood that a domicile is in its strict legal sense one's true, fixed and permanent home, to which, whenever he is absent, he has the intention of returning. Horne v. Horne,
In order to determine whether one is a resident of this State in this sense, it is necessary, in some instances, to ascertain the intent of the *37 party. When one has been such a resident, a removal from its limits, with intent not to return, will at once deprive him of the privileges incident to his residence here; but the absence may be intended to be of such a temporary nature as to avoid the consequence above — it is for the jury to determine. In which case it may be important to learn the purpose of the party and the circumstances of the removal. Was it for the purpose of engaging in business? the kind of business? did he take with him all of his property? These may be circumstances which the jury should consider. In this view, the question whether this plaintiff did not intend to engage in business in Suffolk was pertinent to the inquiry, whether at the time of the sale, if she (53) were then actually in Virginia, or were on her way there with all her property, she had then abandoned her residence in North Carolina.
As it is evident that there must be a new trial, we will not consider the other exceptions, only as to the instructions given by his Honor upon the measure of damages.
If on another trial it should be found that the plaintiff was a resident of this State, having here her home at the time of the sale of her personal goods in disregard of her rights of exemption, it will be necessary to consider the measure of the damage to which she will be entitled under the law.
This would be full compensation for the loss sustained by her as the result of this disregard of her rights and the sale of her property, which, according to the evidence, was of less value than $500, not the value of the property at the time of the levy, but the actual loss sustained by her. If she regained the property upon the payment by her of the amount of the judgment debt, or any other fixed sum, this would be the measure, and it might be augmented by any further actual expense to which she might have been subjected by the sale of her property.
In Winburne v. Bryan,
"If the owner has recovered property taken from him by the wrongdoer, that fact will reduce the damages; but the owner is allowed compensation for his expenditures in recovering the property. Thus, where the property was seized and sold by the defendant, a sheriff, and was repurchased by the plaintiff from the one who bought it at the sheriff's sale, it was held that the measure of damages was the amount paid to repurchase the property." 1 Sedgwick on Damages, sec. 58.
Cited: Gardner v. McConnaughey,