27 S.E. 29 | N.C. | 1897
In the judgment of December Term, 1893, Judge Winston appointed W. B. Stafford receiver "of all the land and real estate described in the complaint in this action." That part of the real estate of defendant (appellant), which was allotted to him as a homestead, after the execution of the mortgage set out in the *244 (354) complaint, was included in the tract called in the complaint the "Home Place." Stafford was also made a Commissioner and was instructed to sell the land mentioned in the complaint except the part which had been allotted to the defendant as his homestead, and also to report to the court the particulars of the judgment and mortgage indebtedness of the defendant. The Commissioner exposed one of the tracts of land to public sale and reported the same to the court, but the report was not confirmed. Afterwards Judge Bryan, by another order in the cause, instructed the Commissioner to make sale of the property and report to the next term of the court. In this order he directed the Commissioner to sell also the homestead if, after having sold the other real estate, the amount of the sales from that source should appear insufficient to pay the mortgage liens. An exception was noted to the order of Judge Bryan and the same is brought up on appeal.
In the argument here the contention of the defendant was that the judgment of Judge Winston was one of consent, final in its character and in some way or other passed the title and right of possession of the homestead to the defendant, and that Judge Bryan's decree, ordering the homestead to be sold under the contingency therein named, was void.
We fail to see that the judgment of Judge Winston, at December Term, 1893, was by consent in the sense that the homestead of the defendant was to be exempted from the mortgage debt of the defendant. There is no such adjudication in the order. Judge Winston and the counsel no doubt thought that the real estate conveyed in the mortgages, other than that part which had been allotted to the defendant as a homestead, would be sufficient to pay the mortgage debts and therefore the sale of the homestead would not be necessary. But, when later on it appeared that it would be necessary to sell all of the real estate, (355) including the homestead, to pay the mortgage debts, Judge Bryan made the decree ordering the sale of the homestead under the contingency named. The exception to that order and judgment cannot be sustained. The exception to the judgment of Judge Hoke, made at the August Term, 1896, was abandoned here.
No error. *245
