29 S.E. 371 | N.C. | 1898
DOUGLAS, J., dissents. "Whereas judgment was rendered 10 November, 1894, in the Superior Court of Wake County, in an action between B. Liles, Wm. Watts et al., plaintiffs, and J. Rowan Rogers, John Upchurch, James Ennis, J. P. Sorrell, J. D. Pearce, Loftin Harrison, R. B. Ellis, and J. W. Pernell, defendants, in favor of S. Watts, A. B. Marshburn et al., against the defendant H. C. Lashlie for the sum of one hundred and eighty-two (238) dollars and twenty cents, as appears to us by the judgment roll filed in the office of the clerk of the Superior Court of said county:
And, whereas, the judgment docket in this county on 21 November, 1904, and the sum of one hundred and eighty-two dollars and ninety cents is due thereon, with interest on same from 1 October, 1891, and the further sum of seventy-six dollars and ten cents for costs and disbursements in said suit expended, whereof the said H. C. Lashlie is liable.
You are therefore commanded to satisfy the said judgment out of the personal property of the said defendant within your county; or, if sufficient personal property cannot be found, then out of the real property in your county belonging to such defendant, etc. *145
The judgment was one rendered on the report of a referee in an action against a defaulting sheriff and his sureties, the amount of the judgment against H. C. Lashlie being for $182.20, and various amounts against the other defendants separately stated.
The appraisers summoned by the sheriff had allotted to the defendant H. C. Lashlie, as a homestead, a tract of land of 32 acres, valued at $40. No excess was reported. The sheriff, under the direction of the plaintiff, sold the land sued for, which had been conveyed by the defendant H. C. Lashlie to his son D. D. Lashlie, at which sale plaintiff bought. The tract so sold contained 109 acres.
It was in evidence that at the time of the issuance of the summons herein the defendant D. D. Lashlie was in the possession (239) of the land in controversy; H. C. Lashlie was living on it also.
In the argument on the issues counsel for defendant insisted that before the rendition of plaintiff's judgment, H. C. Lashlie, being largely indebted, conveyed the land to his son D. D. Lashlie, and contended that the issue was whether said conveyance was in fraud of creditors, the plaintiff being one of his said creditors.
Upon this evidence the court nonsuited the plaintiff, who excepted and appealed.
The execution sufficiently conforms to the judgment. The variance is technical and immaterial. Rutherford v. Raborn,
A purchaser at a judicial or execution sale has a prima facie (240) title, and a defendant in an action of ejectment, who seeks to avoid such title on the ground of homestead rights, must specifically plead the facts upon which the homestead right depends (Allisonv. Snider,
When the case goes back, and the defendant D. D. Lashlie shall set up his deed from H. C. Lashlie, it will be open to the plaintiff to attack it for fraud. Upon that issue the result of the action must depend, for H. C. Lashlie in any event is estopped to assert a homestead therein.
In no aspect of the case can the nonsuit be sustained, and it must be set aside.
Error.
DOUGLAS, J., dissents.
Cited: McGowan v. McGowan, ante, 169; Cawfield v. Owens,
(242)