Long v. . Walker

IN THE SUPREME COURT. Walker. *J.W. C. LONG v. W. A. WALKER. Constitution —Contract—Costs—Homestead Personal Prop- erty Exemptions Judgment—Execution Sale —Lien—Stare — decisis. 0., executor, judgment against

1. One recovered the defendant on a by year 1867, debt due his testator contract before the paid caused execution to issue. The defendant to the Sheriff the principal judgment, receipt interest of the and took his there- defendant, including costs). (not The Sheriff sold the land of satisfy costs, already plaintiff levied on to at which sale Held, bought brings possession: this action to recover disbursements, right to recover payment, case of default in law, by made, being secured when contract was entered into it, part judg- and formed and such costs as incidents of the property, ment constitute lien the’ same and to the same extent, principal and as the interest of the debt. they lien in favor 2. This exists officers of the Court when do not do, require plaintiff, right p>ay have a their fees (Sheriff in advance. In such instances the officers and Clerk of Court) right have the of retainer to the extent of the costs out collected, compelled of the amount and neither can be to look bond, exclusively plaintiff’s prosecution prevented nor remedy debtor, by exhausting against reason of compromise receipt between the creditor and debtor. receipt given operate, receipt prin- in this case did not like the 3. The debt, pending collection, cipal and interest of a while suit is for its extinguish plaintiff’s claim defendant for the costs action, special agreement incident to the the absence of some contrary. to the If the sale of defendant’s land the execution would have been thereon, allotting prin- him a homestead when valid without cipal paid, and interest of the debt had not been the estate of the passed, satisfy under the sale to the costs debtor by due virtue the execution. remedy 6. A contract has a vested either to the creditor made, recovery of his that existed when the contract was remedy in or another sufficient its stead. * Head-notes J. Avery, TERM, 1890.

Long v. Waleee. cannot, law, efficacy altering remedy by impair in a State its 6. In the degree, impair the means a license to the least because to destroy. year the creditor execution issue the could cause to 7. Before debtor, property personal and if there the real and of the or, Sheriff, personal goods, opinion in the were not suffi- no debt, levy satisfy required the the officer was cient sell, creditor, body embarrassment to the whole and without the land, necessary, if and at all events his entire of the debtor’s in interest that sold. provided remedy, compared with when the con-

8. If the new as made, tendency to the value of debt tract was has a diminish the degree, (cid:127)in least it is the unconstitutional. pay allotting any required to of 9. If the creditor is the costs home- excess, selling successively in and of the the rever- stead advance itself, paying and the and list sion homestead incurs the of such reimbursement, expenses proceeds if of all without the do by pay the value of the debt diminished the sum total expense by by selling and the amount realized of such decreased reversionary separately. and interest homestead remedy impairs the and the value of the debt diminishes execution, person, nor other can cause neither bring at sale allotment of home- land to its value without stead, having incurring valid- buy it without the risk of and successfully impeached lapse years, ity after the of of the sale finding that the land was worth over one thousand jury of a when sold. dollars value, bring land would year was amount the

11. The title, execution, good purchaser got a at such a sale and bidders, fraud, competition preventing a fair unless such shown, was one who attacked the the burden then on it, prove principle laid while under the down for fraud sale purchaser burden on a would rest forever Morrison Watson laying true value of off a homestead to show the at a sale without dollars, bought less than have been one thousand land invalid. his deed declared 100), S., Kearsy (96 case Edwards v. U. the decision

12. After Legislature declared the Act of the State this Court and debts the 24th of as to contracted before 1869unconstitutional sale liabilities of citizens were settled April, satisfy created that date without allottment land to debts before of homesteads. IN THE SUPREME COURT. Walker. general

13. The policy adhering the last of a Court decision subject to the limitation inadvertent decisions must be overruled, they time, long unless have been acted on for a property bought public prin- has because faith in the ciple decided. adjudications in construing 14. Where the of a Court a statute or the organic wrong originally, law seem to have been but have been recognized authority years, and property titles to have been accepted through stability, they faith in their become a sale of property ought, certainty for the sake of to be observed ifas originally part had formed a the text of the statute. creditor, acting upon principle 15. Where a laid down Morrison v. Watson caused the laid off has debtor’s to be sold, excess, reversionary first the then the in the interest home- stead, itself, all and then the homestead such sales valid. C., 332, The 16. case of Morrison v. N. in is overruled so satisfy far as arising it declares sale under execution to out April, of a contract made before the 24th of void for lay failure to the homestead the off of debtor. Term, This was a civil tried the May 1889, of action, of Brown, Court Superior County, before J. Iredell deed, claimed under a Sheriff’s plaintiff executed The Sheriff 3887. sold virtue an September of execu- tion issued on a defendant, judgment against rendered on a contractu, cause of action cx that arose to the prior 1867. But while the year execution was in the hands of Sheriff, the defendant Walker to the paid plaintiff, the execution of the and interest of the principal judgment, but no costs, and took in form part receipt fol- : lows A.

“Received W. Walker one hundred and forty- nine foo- in full dollars of the payment inter- principal est the debt (not costs) including judgment Court of Iredell Superior of John case F. County Cowan, and W. H. Long Cowan, F. administrators W. deceased, G. Weir and wife, W. W. A. Walker and others. This of March, 30th day 1887. H.Wm. Ex’r

(Sig.) F. Cowan.” W. Cowan, TERM, 1890. Long v. WalkeR. submitted, the issues herein without objection,

The Court are as of the follows: which, findings out, jury, with set sale, did the defendant date of the execution At the 1. as one farm in the complaint lands described occupy and use the same thereon and cultivate tract reside Answer, Yes. as such? of the and interest judgment

2. Was principal sold, lands were paid which the execution sale, and did he full satisfy before therein plaintiff Answer, Yes. and interest? said and discharge principal notice at time and before so, If did Long 3. plaintiff interest had been fully that said sale principal said Answer, Yes. paid? date of sale ? of said lands at said value

4. What Answer, $1,900. or rents of the thereof annual value part is the 5. What Answer, land? $45. Luck”

called of said lands described of the the value part What was Answer, $1,450. land? called “'Walker” in complaint found jury, plaintiff were the issues After land described for the part moved land, Luck tract of admitting as the complaint the other land to recover part not entitled he was Plaintiff also moved judg- Walker land. as the known land from date purchase, Septem- rents of Luck for ment : contended 5th, The plaintiff 1887. ber the home- defendant’s it was unnecessary assign 1. That was rendered on debt con- the because judgment stead to 1868. tracted prior the as to the tract called That disclaiming

2. plaintiff would all he was entitled tract, defendant the Walker and that plaintiff the constitutional provision, to under tract event, to the called Luck would, in be entitled tract. IN THE SUPREME COURT. Walker.

3. That the find although the second jury issue the costs remain plaintiff, and yet unpaid, that although said costs are admitted to 1868, have accrued since the year still are an incident to debt. original

The defendant inherited the Walker tract of from 250 to his father, 300 acres from and the Luck tract of 50 bought acres, it. many years ago, added to He lived on the tract, still Walker lives on it; but for many years prior sale, and since he the Luck bought has used place, farm, the two as one had a fence that enclosed single cultivated on both tracts, lands and had the two listed one tract taxation. for

There was for defendant, from w'hich plain- tiff appealed. Furches,

Mr. D. M. for plaintiff. Robbins,

Mr. for W. M. defendant. J. after facts: law in stating force before Avery, when contract year between the testator Cowan, execution, the defendant Code, Walker made ch. sec. (Rev. that, 75), provided on default full payment, judgment with costs,” should awarded to a suit payee brought its enforcement. The statutory recover not only interest, but disbursements incident principal action, therefore entered into and prosecution formed of the original between the part agreement creditor and debtor, though the law had just provisions it,, inwas, intendment, one incorporated legal the former to inducements to loan the with money part that constituted the consideration of the con property Lim., Const. 285; tract. Cooley’s Russell, Koonce p. C., 179; Wall., N. City Von Quincy, Hoffman TERM, 1890. Walker. rendered, the Clerk when is The costs taxed by judgment in and that favor- of the Sheriff while the execu- accruing hands, in in tion is his be collected the officers by may from advance of and duty, discharging plaintiff, a law lien the same plaintiff property, gives extent, to the same for the of his disbursements as security Freeman, and interest of his debt. principal §838, “The lien of a on says: work Judgments, judgment which to all the interests the debtor had at the attaches sale, A under the rendition judgment. subsequent so as to all back, relates the tille which the judgment, transfer had whenthe lien attached. But where debtor costsare incurred lien, a are be out realized, in enforcing paid proceeds to the lien.” also See Shelly’s preferred Appeal, Bean, Vermont, St., McNeillv. 210; Penn. Whitman, case of 6 Bush. Knight 51,

But the is (Ky.), decisive the doctrine that directly point, debt, to the collection of costs incident the enforce it, are deemed to ment of a constitute a judgment part not favored part), liable property (if to the lien for the to be debt subjected costs. The Court of for the Kentucky sold say, that, to: “It is insisted referred opinion judgment being not, homeslead worth one thousand being dol lars, execution, was not liable to sale under this but was pro 10th, 1866, our statute of tected which February enacted that, in addition to the now personal property exempt liabilities, on all debts and created execution or incurred after June, 1866, there shall be from sale exempt first execution, &c., land, so much including dwelling-house, &c., debtor, owned shall exceed value one * * * thousand dollars. Then it has been ascer judicially tained that the defendant was liable to when said suit was in 1865, and anterior to June 1st, brought said therefore statute exemption inapplicable. IN THE SUPREME COURT.

Long v. Walker. * * * said, It is however, that the costs were subsequently incurred, hence the homestead was not liable therefor. is sufficient to that the say, exemption under the statute of 1866, is February, only applicable debts and liabilities or incurred 1st, created after June 1866, so that in all that class of cases thereto existing there prior is no homestead The costs all exemption. such cases are only incidents^ thereto, attached and must be governed by laws applicable the debtor out liability which theygrow.” The differ only ence material for the of this purpose discussion between the of our Constitution and provision the Kentucky statute, latter, is that the its by express terms, did not apply liabilities, to antecedent while the former was limited its the construction operation by given by Court Supreme States, of the United as to contracts made to its subsequent In adoption. Slaughter 85 N. Winfrey, C., 160, which was an action a landlord to enforce a lien for rent b}7 tenant, the late Chief Justice Smith for the says, Court: “As the act the seizure of a requires sufficient part crop demand, to meet plaintiff’s costs as well, it is obvious that both must be satisfied out of the proceeds sale, so when the Court. adjudged If it by were otherwise, the rent would be reduced practically the cost by incurred in it, and to this obtaining extent the ample security,intended statute, be the use of the by impaired by means necessary it availableto the landlord.” making But it was rather than contended, suggested, on the argu- counsel, that, ment defendant’s costs incident to though collected, with judgment along principal interest, and retained out of the of a sale proceeds Clerk, execution the Sheriff and still payment and interest of the principal creditor judgment would incident, the lien of the as the destroy just a receipt by from a defendant, without plaintiff any specific agreement costs, as to of the full amount of a debt demanded an TERM, "Walkee. collection, for its has been held action pending discharge to a for costs of such the latter suit. liability judgment difference, however, There is wide between the relations after the rendition of of the parties prior thereto. the officers of the Court After judgment, acquire fees, the collection their and to enforce all for the of them that the had security payment and, addition, some his'judgmeut right, instances, of retainer out of funds the Clerk’s office. Allen, Jones, Bank, Clerk’s 7 v. 156; Clerk’s Office Office C.,N. 66 In 4 Iredell, Clerk v. Wagoner, 131, Chief Justice RuffiN, Court, of the the delivering opinion “It has says: been usual the for officers of the Court to the indulge successful his until for costs a return of his party execution therefor the cast. If against on that party execution, raised the officers, instead the receive It them. is clear that party, every party of to may be his own costs as required incurred, pay they are * * * or at time when any demanded. In Lochman’s Dev., case, it is true the execution the against success- ful was not for until a party moved return of nulla bona on a the against cast.” Clerk party has the to ft. fa. retain the Court costs out of the amount returned the by as net of Sheriff proceeds fees, sale after his deducting of neither them can be by reason of com- compelled, made the by creditor with the promise debtor, to- look to the on his former exclusively prosecution bond, or his prevented exhausting remedy the latter the issue execution and a of such sale property may found to liable be under it. subjected manifest, therefore, if the Sheriff law to a have homestead to required by allotted the defend- land, excess, ant on first the if to levy any, satisfy Cowan, execution before debt it was no was paid

105—7 THE IN SUPREME COURT. Waliier. the sale that it should validity have

more essential afterwards and before under the selling done execu- been costs remained unpaid. when only tion of a contract is the law which binds The obligation their Sturges agreement.” Crowning perform parties Wheaton, 122. “The has no shield,4 reference prohibition impairment. The and'the least are largest the degree Wall., Von City Quincy, forbidden.” alike Hoffman Dec., 1879). sec. Fed. Myer’s Looking govern 535 (7 settled Court of United Supreme ing principle, testing find that touchstone constitu States, we statute, creditor pre-existing of a requiring pay tionality and allotment of to his exemptions appraisement to be made he can cause levy prop before debtor latter, is found whether the question erty throws the smallest of the law impediment enforcement collection, in the dimin slightest degree the way it would the claim below what value of ishes incident to the were sale. trouble expense no such limit, to alter the lias this remedy of the States The right it, the not because to must impair right impair that Wheaton, McCullochv. 4 destroy. Maryland, a license means S., 96 600. of a U. Kearsy, obligation Edward 416; its within everything obligatory scope. includes contract is more than elements, the nothing important these Among This the breath of its exist- is vital enforcement. of means * * * tests that contract has One ence. been dimin- its value has by legislation that impaired and 601. Ibid, 600 ished. adverted, to which we have already the principle

Upon had a to enforce the (Cowan) in execution the the machin- in manner and his the by of judgment collection contracted, unless law the debt wdien by provided ery law, substituted which meantime been had remedy newa of the the debtor with him subject property enable would TERM, 1890. 99 Walkeb. as as the law, little embarrassment former and with out diminution in the his value of due any new method of the Before proceeding. year the cred itor could cause to issue on his execution judgment (under 1 2 the of ch. secs. and Revised provisions Code) against the well the lands as of personal debtor, the goods and if or, no in there were the personal properly, opinion of the Sheriff, not the the enough satisfy officer judgment, would sell, without or levy upon expense embarrassment, the land, if and, whole of his in body necessary, event, in sold. entire interest Instead of this speedy, unre stricted of remedy the debtor of property every afforded law' when the contract species, was made, restricted, is now creditor to the circuitous method of piece-meal, pointed in selling property by out Morrison C., 340, N. and is subject delay, hindrance of loss by chances serious forced to being advance pay all the costs appraising personal property exemptions the homestead allotting preliminary any sale and all, satisfaction unless where he will assume the risk of land is the debtor’s worth less than one showing thousand dollars. The a creditor must requirement submit to exaction, this new' of the parties when contemplation must, was made, diminish contract necessity, value risk, the ratio of the debt outlay money attending the hindrance method prescribed collection, with that incident to under the law compared force To before the the extent year diminution the value of or hindrance delay caused by law, in the remedy change impaired. Bronson v. , 1 How Evans 311; & Knight. Watts S. Montgomery, (Pa.), Mo., 218; Bank, 518; Reade v. Carsonv. Arkansas, Frankfort How., 513; Bond, Wis., 15 28; Oatman v. 15 Mundy v. Mun “ roe, Mich., 1 rule 76. The seems be that modes of and forms to the contract, enforce the proceeding Legis- THE IN COURT. SUPREME

Long Walker. v. has limit or alter them, control may enlarge, lature it does not so embarrass it with deny remedy provided and restrictions as seriously the value conditions impair “ Sneed, Otto, v. Tenn. 69. A the creditor by of right.” has a vested the remedies for the recovery contract debt, which at law existed when contract of was made, Legislature State cannot take them away contract, of obligation without impairing though them, others, if a and even substitute sufficient modify left, or another sufficient one be Mem- remedy provided. States, Otto, v. United phis sake of that it merely

But argument, conceding, whether the made remedy doubtful in the change Code,§§502-508, in Morrison placed upon construction as to the law within inhi such bring supra, I, States, of Art. of Constitution the United §10 of .bit'ion modification, still reason and public policy unwarranted an a return to the laid down by to dictate principles combine inon and acted rights prop Court adjustment in the settlement decision consequent upon erty general Kearsy, 1887). Prior to (October, supra Edwards case, in that uni this Court had ruling publication in Art. our held the laws embodied X of formly exemption Constitution, it, enacted in the statutes pursuance alike, whether the was neces appraisement made applicable aon contract entered into ante arising sary by of the Constitution on adoption or subsequent rior but a 24, 1868; new rendered departure judicial April foundation Court when the which the had imperative for nine was so years suddenly swept away. building C., 187, 80 N. Gheen Justice Summey, Accordingly, Court, The Act. the opinion says: delivering Ashe, 7, 1869, as to void debts contracted to- being prior April act,, then all 24th of April, provisions out the tothe machinery carrying provisions regard with TERM, 1890. 101 Long Walker. are void

Constitution as to the same At same class debts.” earlier, term (.January,. but decided Earle 1879), Court Hardie, C., v. 177, 80 N. the first in case which this ques tion of the validity the Homestead Act Machinery (Bat Rev., 55, 7, tle’s ch. Act of as to contracts applied April 1869), 24, 1868, created was before discussed after the decis April “ ion in v. Edwards said : the Court Kearsy, second Art. X section of of our Constitution of 1868 having contracted, declared void debts previously Act of 1869, on' Legislature, the 7th passed April, * * * effect, its into carry provisions is also void.” The same was at in held that term Gamblev. principle Rhyne, C., 183, 80 N. apply personal property exemption, Term, and in decided more the January 18o0) language (at Watts, 212, in v. C., Carlton 82 N. Court This where the says: 1860, an old contracted in defendant was being entitled to the dollars of five hundred exemption guaranteed Constitution, by but to such only exemption him secured to the law at the date of the contract.” existing Term, 1882, in Patton, C., v. October Wilson 87 N. Again, 318, this Court of á sale without recognized validity homestead, three of the because seven execu allotting tions under which sold on the Sheriff were issued judg ments rendered on old and in debts distribu adjusting tion of the of sale the held that all proceeds Court fund in satisfaction might applied, required, three an but that of one judgments; equivalent money thousand dollars must be treated as the homestead against debts, other thus substance again reiterating first laid down in Earle v. Plardie. In principle Grant Edwards, C., N. 86 it was announced the Act again of 1869 was not intended where execution issued apply on old debts.

As is Davis, demonstrated his dis- clearly Justice C., N. Morrison v. 101 senting opinion THE COURT. IN SUPREME Walkbb. , 238, N. C Albright was decided Albright, case of in no involved this way question; principle Estis, C., Term, 92 N. (February 1885), that of Arnold v. to on the that sale made the rested the was decision ground debt, new, as an and was held invalid a as well old satisfy cited, reason, for that while the Court approved, expressly C., 396, v. down in Mebane 89 N. the four rules laid Layton, that a to debt be satisfy was sale an old could one of which off the of the made without lawfully laying C., is Miller, 402, v. N. there intima- kSo Miller an debtor. is taken entirely obiter) tion view subsequently (which Watson, C., of the Court Morrison 101 N. aby majority debt, an without 332, the sale of the land to old but satisfy homestead, was valid. held allotting that, intimations, there from some unnecessary So apart line of authorities to the doctrine was an unbroken adhering Flinchum, down to Earle v. Hardie McCanless enunciated C., declared, 358, where a of the Court 98 N. majority C., 101 N. case of Morrison the subsequent held that it of the Court was essential in which majority land execution of the sale of issuing to the validity the the adoption on a debt before originating provision Constitution, X that a homestead Article contained debtor, unless it the clearly be allotted to execution sale, that, the debtor did not time of appeared of one to value thousand lands execution own subject too, case, In that the Court charge given dollars. say: to no plaintiff, is obnoxious just complaint than him lands were worth less to show requires homestead, dollars, the maximum allowed thousand one cost.” interest by increased cause who, could year The same creditor prior execution, free from vexatious delay, sold under to be value, its dare land, to without whole of debtor’s regard of allotment the costs incurring not sell without now TERM, Walker. himself, homestead, assured is con- unless but only he be able to called satisfy any jury upon fident that will future, for an in the the issue of title indefinite try period than worth, sale, land was not at the time of more that the dollars, one thousand with the costs and sum of Court The burden cast him that of allotment added. less, void. show that the value sale declared debt amount though Consequently, if dollars, the creditor finds thousands many of different the value of the debtor’s persons estimates dollars, thousand he land hundred two vary eight himself, nor can he induce others to afford to buy cannot land at sale until it is execution valued purchase If, excess, any, at his expense. selling appraisers insufficient allotment, sum realized is still and then the has to whole the creditor compelled pay which, and to now-lose, a that he will make disbursement For law, he have been old would not subjected. under the of creditor and debtor of adjusting rights purpose law, of the valúe of land was the old the criterion at a fair and sale public amount it would open bring at. execution, and unless such sale auction virtue by fraud, as in successfully preventing could be impeached title bidders, a a the purchaser good fair got competition of his bid. If an to the amount attempt without regard sale on made to set aside such the ground had been of bidders was presumption suppressed, competition have been in of its party law would favor validity, it to the fraud would have been prove required alleging down laid But, under the doctrine satisfaction of jury. sale made at a Morrison v. purchaser supra, creditor homestead, because the off the without laying thousand dollars land worth less than one believed the costs, regard price with the burden buys (without even land sells) jury, which the actually satisfying IN THE SUPREME COURT. Walkee. future, the distant is not worth one thousand dollars and costs. Common observation has us that taught n estimates as to value such cases juries are as widely opinions variant as the on witnesses the same subject, if the estimate value exceeds one yet, thousand dol- lars and dollar, costs even one the deed of a at purchaser such sale must be declared void.

It cannot be contended that the testator of successfully Cowan would not have been such a dilemma as placed would have him in embarrassed greatly remedy pursuing have decreased of his the value had probably judgment, not the defendant Walker been to risk the unwilling validity of a sale for the and interest of the debt. principal plaintiff who the sale for costs the same bought occupies as if position the land had been sold for the debt as well as costs, and the officersof the Court were not bound to advance off money the homestead and incur necessary lay risk of reimbursement. The bill of costs must have been small if it very did not exceed the hid of ten dol plaintiff's lars. It is if, of the debtor folly reason of the uncer sale, as to tainty the land less validity brought than its value. He to have costs when he ought paid the debt. The fact that the Court so paid construes The Codeas to the creditor or impose other purchaser, be, the case a new burden that would not have attached to a sale lawr, under the former or to him make, require at his peril, values, information as to inquiries acquire the sale with conditions, and is clogs calculated manifestly to diminish the value of the debt and interfere seriously with its collection.

The rule, whether we shall for question, adhere to the first time stated in Morrison v distinctly supra, Term, 1888, Court, of this or overrule that September and case sustain the unbroken current of authority recog- nized for ten nearly years is one of no little moment previous, ' TERM, 1890.

Lona V. WALKER. From the time when the decision the State. of- to the people v. Hardie was January, Earle published, case of to collect as the basis 1879, proceedings it was accepted claims, on old for the sat thousands judgments probably the land of the debtor had been all isfaction of which The idea there liable in Edwards v. Kearsy. declared was in these first decisions be stability strengthened would the Act of ch. construction by given legislative 14th, the first General being ratified March (that that met after opinion Assembly publication that, The the act declares v. Kearsy). preamble Edwards “ States, in the Court of the United Whereas, the Supreme Term, at the October one Edwards v. decided case of Kearsy, hundred and that the seventy-seven, personal thousand eight sec homesteads provided exemptions property two, ten, of the Constitution of North article one tions to debts and were Carolina, respect obliga inoperative Constitution; of said contracted prior adoption tions whereas, whether the various statutes doubts exist pro execution, which exemption property viding of said Constitu in force at date adoption were not been &c. tion, repealed,” act, then, machinery the Constitution assuming as to to be void debts contracted homesteads

for allotting debtors, was provides the Constitution adopted, before such home- claims, have set to them such may apart value, and such dollars not to exceed one stead as thousand dollars, not to exceed five hundred property, personal law in force have been entitled to Constitution, This statute of said &c. before adoption consideration, as a both contemporaneous worthy grave calcu- law, construction of because legislative induce, mentioned, to our decisions lated, with considered for old debts with- induce, land sold buy and did persons fact, an In examination of homestead. out allotment 106 IN THE SUPREME COURT. Walker.

of the Act of 1879 10 of Code, The and com- chapter 137, them with Acts of 1868-69 paring chapter (Battle’s Rev., ch. it will found 55), that there has no statute in force since the 1879, Act of passage or requiring, or Sheriff other officer to off and set lay authorizing, apart a homestead before the real estate of the execu- levying upon debtor, tion where the execution is for the of collection 24, a debt contracted 10 1868; prior April chapter Code, which is of re-enactment substantially chap- 1879, ter 256 of the Acts of and so much of 137 chapter of the Acts of 1868-69 as machinery carry- provides effect, 501, it into otlier ing among things provides (sec. 3), sub-sec. “that real and as set forth property, personal, State,” Art. X of the Constitution shall be exempt from sale under execution debts contracted and “upon 24, 1868,” causes of action accrued since and while April §2, §502 of The Code to be a re-enactment of purports 1868-69, it, fact, ch. the Acts so alters them, as will section, amends be seen by comparing to make it conform to the Act of 1879 by providing Sheriff, officer, or with other the levy charged execution, &c., shall summons “before appraisers, levying the real estate of resident this State who is upon entitled to a under this and “this &c.; chapter,” Code, ch. entitles the execution chapter” (The 10) only “ debtor to the homestead debts contracted exemption upon or causes of accrued since 1868.” The April action words, “entitled to a homestead under this chapter,” in §2, 1868-69, ch. limit Acts of off the Sheriff’s the homestead before duty laying levy contracted, to executions debts causes of action 1868,” accrued since “under this provided April Code, 10, §501, ch. thus amend- chapter” (The sub-sec. 3); Court, of the Act of 1868-’69 ing provisions (which the decision Edwards had declared following Kearsy, TERM, 1890. Long v. Waleer. make off machinery so as the for laying

unconstitutional) Act the of and the conform to ruling the homestead Kearsy. Edwards v. case in which not the the doctrine of

This is ordinary a be invoked sufficient reason furnishing stare decisis can the last of the Court. The for gen- sustaining adjudications to the declared of of the opinions eral policy adhering limitation that inadvertent decisions Court subject overruled, been on for unless acted should be has been of reason the bought by time property long in the faith decided stability principle public of constructions the judicial them. The legislative 1879, led in the to sales under Constitution, year made first at court-house in State in every counsel the advice of the had, 1869, Act and the lands of bought, of disregard confidence, by repeated subsequent strengthened under descent and been transmitted by conveyed by adjudications, now it until with covenants of warranty, probable deeds will be seriously damaged thousands of people that many link in deed, an essential their constituting if a Sheriff’s this Court has is to held void because title, claims laws, of the homestead its construction explicit modified was made the Sheriff. with which sale in conformity numberless'intermediate no It will make difference value full on the advice of counsel who paid purchasers, Court, the land whether opinion predicated thousand for ten or ten sold execution originally will whether we adhere dollars. Neither question Constitution, nor of the Federal settled interpretation who invested or money should those whether we protect under the reasonable belief incurred liability, pecuniary Act had declared of 1869 the Homestead Machinery or void, can be dwarfed magnified importance null the ratio increase decrease as principles vendue. amount the bid public IN THE SUPREME COURT.

LORG V. WALKER. In do, as we that the sale is holding, valid and the plain- tiff’s title to “Luck Place” he good, disclaimed having tract, as to the other we restore numerous vitality.to titles for which have been induced persons their expend money declaration of this plain Court that the Machinery Act of “so far as provides off and allot- laying homesteads debts ting contracted to the 24th prior date of April, adoption Constitution, is void.” Gheenv. Summey,supra. hand, the other

On rule was laid down in Wyche C., 96, 85 N. Wyche, land, that at a purchaser sale made execution, a Sheriff in 1869 under to old an satisfy to, homestead, the the subject took land with the incum- brance, and the whole tract been allotted to having the debtor, that the interest to only reversionary him. passed 202, Kincaid, In the cases of v. 82 N. Corpening C., and Low 333, v. 92 N. it C., dermilk was settled that Corpening, the creditor, might in to old debt, an selling satisfy recognize allotted) homestead case the the benefit of (in the “homesteader,”, sell the interest before reversionary the of the Act of sale of passage forbidding said separate This is in no interest. on principle way dependent the in obiter intimatiSn latter the case of the given subsequent in v. Morrison Watson. holding will be conceded that the act sale of the the forbidding is as interests invalid and

reversionary certainly unconsti as tutional the law provision organic the exempting as a to collect debts prohibition against proceedings But, created before while the creditor April debtor, sell the entire interest the to the passing purchaser home, debtor from fee-simple the the it is driving that, clear the rule and reasoning Wyche Wyche, Barrett v. and Lowdermilk v. Richardson Corpening, supra, Sheriff, debtor, he as his the permit to agent, mercy sell, to to the homestead” or “subject (allotted unallotted), TERM, 1890.

Long- v. WalkeR. interest reversionary only. and passes is valid the sale Richardson, C., 423, Reade, N. Justice In Barrett land, claim the The defendants Court, discharged says: homestead, upon the that the debts for which ground were, to the sold contracted prior land was adoption that, therefore, Constitution, had no those claim a homestead debts. Grant that the the sake of grant plaintiffs that for argument, on have had the lands levied executions might these it, and to do did not sold, were do it. obliged yet sale and Sheriff’s deed levy, were ‘sub contrary, On ” If, therefore, the homestead.’ to the proceedings ject within been conformed two years old debts past collect it Court Morrison is mani opinion title, derived from sales so made, will not a single fest reason of'the fact that invalid decision rendered in so far only is now overruled declares a case in that of a homestead case essential allotment previous made to a debt a sale satisfy contracted validity 24th, the creditor 1868. Whether has caused before April homestead,” sold to be or “subject land the debtor’s the homestead, after only, the excess allotting sold has a sum failed sufficient to excess bring satisfy where further to sell debt, has fractional successively proceeded itself',in debtor, order to favor the the homestead of parts cases, and all of these has taken a title any the purchaser, the manner of because irregularity defeasible selling. Court, in of a a statute construing the adjudications

Where law, seem have but wrong originally, the organic and titles to authority years, prop- have been recognized faith their such accepted through stability, have been erty become a rule of Lord declarations property. judicial determinations, “When solemn said: acquiesced Mansfield cases and become a rule of have settled under, precise prop- no IN THE SUPREME COURT.

Long v. Walkee. for the sake ought, to be erty, they certainty, observed as had formed a the text originally part of the v. Burrow, 1 419; Wyndham Ghetwynd, statute.” State v. 122; La. Ann. on Rep., Sedgwick and Thompson, Statutory Law, v. 254; Kenan, C., Scott 94 N. 296; Constitutional Gran C.,N. 148; Kennedy, Jackson, tham v. 92 N. Young C., Wall., 144; Dubuque, Gilpelke The Court should, There is error. findings admissions, and the have allowed motion jury plaintiff’s in his for the favor of the land known possession judgment Place,” and for costs. the “Luck of the judgment reversed, and Court below must be judgment entered for writ of favor of for said possession “Luck Place,” and rents of and for costs. place,

Error. J., C. I feel constrained to dissenting: differ Merrimon, from brethren this case. I widely my dissent very Court, of the much of the reasoning therein to interpretation numerous given opinion, cases, and the decided several other cases, overruling and after much earnest consideration. decided me case, It seems to clear that very like that of C., 236, 102 N. Hodges, it in Hughes going beyond narrows, further respects, impairs unsettles important homestead, as established and the right contemplated by Constitution, while renews and unnecessarity enlarges of decision on the conflict of homestead— subject—that the Court has not a little trouble in given past, continue to do so. Moreover, it likely will manifests an of decided cases that inconsiderate cannot fail disregard in more or less detriment result lessen public, in the uniformity confidence stability decisions Court, of this serious in its very nature and something to be deprecated. greatly Ill TERM,

Long v. WaleeR. in to the must result decision grievous injustice The Court, the decisions of this defendant. Under prevailing at the time the sale and deed and material respects pertinent made, claims were which the were plaintiff’s they under This cases and makes void. case overrules those absolutely valid, and, as a the defendant sale and deed such consequence, land, tract of which the found to be worth loses his jury dollars, hundred and the it for the several plaintiff gets I think cases so nominal of ten dollars! overruled price decided, but even if their were correctness were correctly should not be overruled. If they were they questionable conflict, contended, extent, to some with former decisions, the later ones should be observed. prevail Otherwise, conflict, there can be no end to such and the must be deplorable. result state some of the dissent

I will more in grounds my earnestly, contends that detail. inasmuch as sold, which the defendant’s land satisfy was before the of this contracted Constitution State present took effect, the laws of the State respect home- homestead, do not that, stead and as to this debt, apply; void, because, insists, he they inoperative contract, are thus in obligation con- impair States, the Constitution of the flict with United and he cites Kearsy, Edwards v. mainly , and relies U. S. Rep case went from Court. which that the It must be observed Supreme-Court United effect, not, did terms or decide in the States case cited just debtor was not entitled case judgment his homestead and laid off to him valued as allowed State, and laws of this the Constitution debt on was founded was contracted which before took effect. State Constitution decided, in simply present effect, more, and no substance the homestead thus and laid off could valued sale exempt 112 IN THE SUPREME COURT. WaleeR.

execution or other final obtained on process such debt, any” if it were to the satisfaction debt, of the necessary because to it to so allow be would exempt impair of the obligation contract. the Court did decide, not Obviously, nor intend decide, in such a case the debtor could not have his homestead, if he had real or property, personal, subject and sale sufficient to levy the debt satisfy without resorting Thus, homestead. to his the debt were five hundred dol the debtor lars, and had land of the two or value of five dollars thousand to the satisfaction subject other homestead, than the the Court did not decide that the latter in such would not case be sale; such did exempt nor in such it case the proceedings, whereby decide off, wras valued laid and were void necessarily. If were sufficient to there the debt without property satisfy homestead the latter would be resorting exempt, in that because case the contract would not obligation and the laws of the be State to home impaired, respect not be conflict with stead would the Constitution of the Constitution of United States. The the United States and State, and latter, Constitution of this the laws of the are to be and unnecessarily not treated as conflict. interpreted the constitutional and contrary, On provisions statutory on of the State will be allowed to any subject regulations effect, and have unless in some mate just they way operate with, interfere impair rially abridge powers, authority and and established secured the Constitution guarantees Keokuk, Packet v. 95 S. States. Co. U. United Rep., Louisiana, 80; v. 103 S. Austin Alder 80; Allen U. v. Rep., Wallace, man, 694. The Constitution and laws of the 7 States, States, the same of the several are United at all in on are conflict; to be the contrary, they presumed and, in material respects, to be harmony, presumed far as and treated as reason harmonizing interpreted Nor will the Courts of the be. they justly ably TERM, 1890. Long Walker. treat as States ignore inoperative

United unnecessarily constitutional statutes several void provisions States. On the their contrary, duty give,.and will them when can do effect and where they give, properly Pet., Hoaseman, Smith, ; so. Clark 195 Claflin S., Hence, Court, cited, U. the case said already to It is be understood that the cautiously: encroachment material, thus denounced must be material. If it be not it will be as of no account.” The Court further: regarded said “ The in a remedy State when and con subsisting where a is tract made and is be to is'a performed, of its part obliga tion, and law of the any State which subsequent so affectsthe as to and lessen the remedy substantially impair value of the is Constitution, contract forbidden and is therefore void.”

The that this Court has made suggestion decisions since Edwards v. decided, not in Kearsy, supra, with harmony it, is certainly unfounded. has, On the it contrary, uniformly, cases, in many expressly recognized case, that and substan- in all material tially, respects, the law as applied expounded it, as and settled the cases cited, to presently be and other cases, show. to abundantly effect Giving the constitutional and .statutory provisions regulations to respect home- stead, the has Court decided numerous cases that debts contracted before constitutional present provision estab- effect, took lishing right do not neces- sarily prevail homestead—that against do not they unless is to their necessary it; satisfaction to sell and it. has also so interpreted statutory regulations respect to the valuation and off the homestead as laying them give has, effect. The Court as practical we shall see, made no decision that creditor, of such impairs right or that materially the enforcement of delays cripples that right. It has administered the only homestead of right such

105—8 THE IN SUPREME COURT.

Long v. Walkeb. as this be done with the consistently as far might debtor of such creditor. right paramount C., 238, N. late Justice Albright, In Albright “: has clear a constitutional right said Ruffin both his realty personalty, to his exemptions of his each and one creditors every he has against of his is mistake date demand. without regard such the law giving exemptions necessarily to suppose to its It is prior debts existing adoption. as against void there should not be after sufficiency, so case allow only them, would satisfy whereby the exemptions,'fully ing and constitu Otherwise they operative defeated. be whatever; other demand to them tional a right debtor has to have his allotment say, his homestead and his made, apart specifically setting creditor, claim then to have though exemptions, all his other exhaust one, possessions every an old them. he shall his hands on Cheathamv. put kind before C.,N. 87.” This C., 153; Burton v. 87 Spiers, Jones, 68 N. overrules. case expressly the present C., 402, N. Court said: But Miller, 89 In Miller what the debtor takes does not*prevail, the homestead where left, If is is the laying the debt’ paid. nothing is left after and would have nothing operate upon off the otherwise, if however, would be useless. It it be would sufficient to whose pay judgments had debtor property for the law favors last mentioned judgment, liens ante-date be, if homestead; that need prevail may, it, this must done. be be it, can without selling paid against the homestead do that debts prevail against The classes events, do and at all but so only necessarily not so prevail them. If the necessary sell pay personal when and the real property over the exemption property that prevails against more than pay will debtor should in that case the homestead homestead, then TERM, 115 Walkee. be laid off so the excess first may sold, be and the ** * if he fails Sheriff to have this peril will done. will happen get debtor homestead of less than value one thousand dollars.” The substance and perti- what is nent thus said is also part overruled present case.

In N. C., 333, Lowdermilk v. 92 Corpening, late Chief said: “Indeed, Justice SMITH the homestead exemption debts, as to either not void class it only becomes so such as were contracted before it became a law, when otherwise the latter could not be collected out of other prop of the debtor. other Such erty first property ought to be and, if sufficient, the debtor appropriated, allowed to avail himself the benefit of the constitutional provision made id., in his behalf.” Cobb v. 652; Hallyburton, Morrison v. C., 336; Patton, 101 N. Wilsonv. N. C., 318; But Stainback, id., 216, effect, ler v. are to same and there are other like cases. These cases are all overruled in the respect now consideration. much on ’stress what is lays said in appellant Ghenn C., 187; N. v. Edwards, C., Grant Summey, N. Goodson, C., cases,

and Keener 89 N. 273. But these substance, their understood and properly do not interpreted, contravene what is said and decided cases cited, just decide, from. They supra, quoted generally prop that debts contracted anterior to the erly, Constitution pre homestead; vail and it is further said in them, terms, that it is not to value and general necessary lay the same off. But now the question under consideration was not raised or to at. all in them, adverted as it was in numerous afterwards. The Court cases did not then, or at afterwards, time so understand. The who wrote Judge in cases, of the Court those and the same opinion Judges them, who decided made most of the subsequent decisions cited, and, in so, far so as supra, doing never appears, sup- IN COURT. THE SUPREME WalkeR. them, as, that were they for a moment overruling

posed Indeed, were not. deciding subsequent really, they under con to, were, as to the now they referred subject cases sideration, new aspects subject simply passing from time to time as were they presented. of homestead that, Edwards, and and Grant Summey supra, Gheen So them, more or less like prove nothing other cases perhaps purpose. present this Court a multitude of decisions of thus appears case, have the homestead debtor, in a may that the proper him, debt one that laid off to be and although valued be, it, and there not if need prevail single against majq decision, understood, the contrary. properly N, and secures 8) Constitution (Art. gives §§ §§502, Code, homestead, and statute 524) {the laid off and how homestead shall valued prescribes is a law- thus expressed to the owner thereof. The purpose and one, statutory ful constitutional provisions valid, are, in their cited application, regulations general not be. may in some particular respects, although, void, account, must and hence not, on this latter They as in as full have as far and measure prac- effect prevail all, but void cannot A statute operate ticable. wholly it in some its lawful, its may when operate purpose it must material be allowed material parts respects, as it has be enforced to such extent to have effect and validity^. seen, entitled

Now, as we have one otherwise be, homestead, need he owes a debt may, although it for Why satisfaction thereof. take prevail not be valued and laid off that case shall-the No full sub- debtor measure practicable? it not be. The reason has been should why stantial given otherwise, by exception statute does provide, effect, affirma- it, the contrary, shall not be. On provides - TERM, Long v. Walker. that it shall be. The constitutional

tively and provision statute, to homestead, intending give encounter the that the owner be, thereof owes a debt if objection that, need it; then, case, and prevails against that purpose it them is to as far and as In give view fully practicable. Constitution, and wholesome generous purpose such is and interpretation just reasonable necessary, and there is neither nor statute decision to the contrary. is, The contention of the that such case sold, land debtor must be without valuing laying homestead, off the debtor have land the. although might to addition and other than the enough homestead pay the debt twice over! It is said that in such the law of case all, not and, therefore, does all apply proceed- in that ings and void! respect nugatory Such view case, not be allowed to surely ought In such a prevail. the debtor not inconvenience, to be ought put sacrifice, of great his whole tract sold. It perhaps having would be law, and the wholly unnecessary, properly applied, does not allow it to be done; intends the homestead shall be valued and laid off and the remainder sold. further, 501, is contended Code, that the statute (The § 1, 2, 3, which debts and cer-

paragraphs classify provide tain as to exemptions them,) suggests implies debtor not entitled to and laid have homestead valued off him as to debts contracted anterior to the Con- present stitution. This contention founded serious misappre- hension. The statute cited re-enacts and for- just brings ward in The certain Code sale statutory exemptions under execution that before the Constitu- prevailed present effect, tion took to secure them the purpose being debtor, reason he could benefit of the exemptions Constitu- secured given present tion. This itself, from the and more statute appears par- from the ch. ticularly to the statute (Acts preamble 256). IN THE SUPREME COURT. Waleek. Code, how the 502-524), prescribing The statute §§ {The off, is as broad and and laid com- shall be valued as it can be; in its terms and effect properly- prehensive it, in by implica- there is no exceptive provision interpreted, otherwise, debts; debt class of it allows as to tion or shall the homestead be in effect requires, and legal in it be done. may laid off case where and every valued if of the as But, statutory the contention it is, than it to more plausible referred were exemptions of because exemption not be allowed prevail: could the same in whole or homestead, and the have allowed, may in or as small measure as be in as large part, effect, statute, of the -but not virtue perl and has exists secures and exempts It of the Constitution. gives, force it be, far within limit homestead, as as may prescribes. and it is the of the Courts duty It and is supreme controlling, it in in effect as and large diligent giving be prompt and purpose as be done. may spirit measure this and the Court so decisions Constitution require, and harmonized with such purpose. spirit generally not the statute does is further insisted that provide It And, in such case. off the homestead and valuing laying not, in But the terms. in three does two or particulars, clear, statute is and the of the Constitution purpose effectuate purpose, be so latter must interpreted to do This the Court endeavored at all this be practicable. case, in N. and that Flinchum, C., McCanless in Morrison expressly was afterwards approved this respect, Davis dis- Mr. C., 101 N. Justice although in both cases. sented laying valuing that the method

It is also insisted case, homestead, obligation-of such impairs off the force. no has substantial This objection the contract. methods procedure the Legislature may change Clearly materially change if it not does as it deem proper, TERM, 1890. Long Walker, creditor, without

existing methods adversely impair- It so decided by such has been uniformly obligation. ing States, as well Court the United Supreme Here, Courts, State cases. Court other many the whole be, is not at all. If need he takes creditor delayed once, costs, his debt and he is homestead to pay land, sale of the reimbursed the money —costs—he costs are amount to advance. The trifling required not as materially affecting could reasonably regarded creditor; simply substance remedy an incident of the unreasonable change procedure. Orleans, New 102 U. S. Louisiana v. Rep., land has cases that a sale of numerous decided where, law, he is the Sheriff cases required and laid off to the have the homestead valued judgment debtor, so, void and the deed and he fails do generally title. There could be scarcely of the Sheriff no passes more illustration of the importance striking propriety now, case. the rule thus until than the present settled land, which jury The undertook to purchase plaintiff dollars, nineteen hundred found to be of the value of and now insists dollars! He took the Sheriff’s deed twenty upon purchase! that led the Court

I need not here re-state the reasons cases It is sufficient to cite several make such decisions. found. They cogent, which they may readily sound policy founded justice, public upon principles C.,396; N. Mebane v. statutory Layton, strong provisions. N. Flinchum, 98 Estis, C.,N. 162; McCanless Arnold C., 400; Morrison Wat C., Adler, 98 N. 358; McCrackenv. C.,N. son, 101 dis- sold as two that the land was

The contends plaintiff on which to that one tracts, tinct and he is entitled live, exception defendant does not benefit claiming land Adler, “sepa- as to out McCrackenv. pointed supra, IN THE SUPREME COURT. Walker. from the homestead and not and. distinct property, rate make the homestead as allowed by necessary complete, be treated as case cannot Surely coming the statute.” found the fact The jury within exception. other, each and the defendant cultivated tracts two adjoined The tracts as one farm. two were and used them sepa- distinct in-the sense hence exception; rate and each! dollars—bid for Obviously, plaintiff price-—-ten adventure, as an and others the sale regarded regarded It turns out to be of a- serious mockery proceeding. defendant. indeed to the debtor serious of the incidents of defendant did not relieve himself The and interest of the debt by principal judg- paying incident The the Court costs remedy ment. .thereto and embraced debt, the contract were of the contemplated Hence, the them', and of its nature. judgment they partook as the was on the same for the costs footing has the and interest debt. plaintiff the principal land for costs that he the defendant’s remedy same debt. had for principal cited, was, to the cases the duty according pertinent homestead valued and

the Sheriff to have the defendant’s so, to do the sale off as the law As he failed laid prescribes. were the deed relied of the land and Court, however, now decided otherwise— void. The Constitu- that, debts contracted anterior to the as to present is entitled to have homestead valued tion, the debtor not a of the land under exe- him, and laid off to and that sale home- valid, as to such debt without regard cution I do think so. stead. not of the decision difficult to determine the compass debts con- of land as to How does it affect sales case. Are they became

tracted after the Constitution operative? and laid off valid where the homestead was valued TERM, 1890. ShafpbR Hahn. so, If would the bidders such the sale? before

the debtor land, not where the for the knowing bid a fair sale price off, how be laid much afterwards homestead might These important questions. embrace? might v. A. HAHN et al. A. W. SHAFFER ante, Walker, Long principle decided involves the This case C., 101N. overruling Morrison civil, land, at February to recover tried This was a action Court of Beaufokt 1889, of the Term, County, Superior J. before Boykin, intro- the evidence Honor being opinion,

His recover, the not entitled to that he was duced by plaintiff, nonsuit appealed. submitted Rodman, Jr., for B. plaintiff. and W. J. H. Small Messrs Warren,for defendants. F. Mr. Charles that on the It was conceded Avisry, argument J.: in the discussed opinion in this case was fully only point land, virtue a sale of Walker,ante, whether Long a created on debt execution, prior a satisfy judgment homestead, and where 24th, without allotting April sold, was void no land except debtor owned valid. but the no new question;

This case phase presents num- sold to satisfy large land controversy having testimony, and being, according ber of judgments, it did not sell dollars, that if we assume ten thousand worth sale, subsequent purchasers, at the Sheriff’s for a sum large

Case Details

Case Name: Long v. . Walker

Court Name: Supreme Court of North Carolina

Date Published: Feb 5, 1890

Citation: 10 S.E. 858

Court Abbreviation: N.C.