81 S.E. 455 | N.C. | 1914
After stating the case: Defendant contended here that this action was not maintainable, upon several grounds, and among others, that the allotment was merely irregular and not void, and (384) the remedy was by exception thereto, or by motion to set aside (Welch v. Welch
Our opinion is that the allotment was valid, although it embraces only a one-seventh undivided interest in land, this being the objection to it urged by plaintiff.
Defendant's counsel concedes that under Campbell v. White,
The provision of Revisal, sec. 688, that the homestead shall be "fixed and described by metes and bounds" applies manifestly to an interest capable of such a description, or, in other words, to land held in severalty. This Court has held that it is not essential to its validity that the "metes and bounds," or course and distance, should be given, but that any description that sufficiently identifies it will do. Ray v.Thornton,
The objection usually urged against allowing a homestead right to exist in an undivided interest is that it may interfere with the rights of the cotenants. "But this is a matter of which the other cotenants alone can complain, and if their rights are respected, persons who are not cotenants cannot object. The object is to protect the portion set off from judgment levies and sales, and not to give an assured title thereto. The cotenant of the claimant of a homestead cannot question the latter's `right to acquire a homestead interest in the property, so long as the cotenant is allowed to enjoy all his rights and privileges in and to said property as a cotenant.'" Brokaw v. Ogle,
In this case it appears that the debtor accepted the allotment of the homestead without any objection, and has for many years occupied and enjoyed the same and held off his creditors. How is he prejudiced in the least degree by receiving his undivided seventh interest in the whole tract, to do with as he pleases during the continuance of the exemption? If he wishes to hold it in severalty, he may, perhaps, have partition, and the judgment lien, subject to the homestead exemption, will rest upon his several interest. In no possible way can he be injured, nor can his *349 creditor, by an allotment of his interest in the joint estate, as he must wait until the time comes to subject the debtor's interest to the payment of his debt, and it being worth less than $1,000, he cannot reach it in the meantime, whether it is allotted as a joint or several interest. It is a strange and illogical argument, advanced by some, which would lead to his losing it simply because the law cannot protect him in the sole enjoyment of it. If he cannot agree with his cotenant, let him have and enjoy his share of the joint profits. This is better than nothing, and more sensible, it seems, than taking it all away because he cannot fully enjoy it except in severalty.
The homestead is sufficiently described by reference to the deeds, recorded in the county, by book and page of the registry.
Affirmed.
Cited: Holley v. White,
(388)