*1 TERM, 0.] SIMMONS McCtTIXIN. V.
consideration of less, education, instead board of county in tbe distribution of tbe building fund, certainly county ought not to them to discriminated exclud- against cause ing them from in that which sharing helped pay, fund, they because an assume additional burden of they willing taxation to better houses and than get equipment county regular school afford provide. They district can encouraged discouraged rather in such com- than mendable efforts.”
For the reasons given, the
Affirmed.
SALLIE SIMMONS et als. W. R. McCULLIN.
(Filed October, 1913.) 1. Exemptions Judgments—Consent. — pend- Tbe defendant was convicted murder of the deceased ing brought by administrator, a civil action widow judge, any duress, intimation but without evidence of defendant consented to in a certain sum action, payable proceeds civil out of the of a'sale of certain which, personal property, his real and attached brought by administrator, understanding suit with the judge passing this should be considered action, was'accordingly Held, the criminal done: having consent, in the civil action been rendered appropriated pay- attached should to the cost, ment the amount thereof and without exemption therein, defendant could claim no property exemption, personal prejudice homestead or to the plaintiffs, the consent concluded him. 2. Same —Wife's Joinder —Constitutional Law. husb.and, subjecting A his thereof, pass lands to the his home- the amount will joinder apart stead interest in lands thus set wife; joinder required unless therein for the is not wife’s force, there is docketed which is lien actually apart. or unless homestead has been set Const., IV, Art. sec. 8. IN THE SUPREME COURT. MoCtjllin.
Simmons v. Exemptions Judgments—Consent—Estoppel. — *2 it had and if A consent has the same force effect as course, by regular a the it becomes been entered court Hence, binding judgment a it. when when the court sanctions property, sale of consent has been entered the the exemp- including personal property and defendant’s homestead regu- tion, complete if a as the bar had court, larly ordinary practice the in the course and of entered as'effectually estoppel, had it will action and work an the been tried on its merits. Special Appearance 4. Process —Nonresident—Court’s Jurisdiction — Neglect —Excusable —Practice. ground by Objection a default the movant, a nonresi- therein served on that the summons action, dent, attending should in another as a witness while goes juris- by special appearance, as motion to- made the the process, person the of and and defective service diction of the ground on the of ex- to set not motion the aside goes controversy neglect, and merits cusable general appearance equivalent and therefore waiver defect in service. Appeal Term, Lyon, February from Jat by plaintiffs of SAMPSON. land. sale of against a defendant’s is an injunction
This for the were indicted and McCullin McCullin James R.W. of murder were convicted and Simmons, murder of Jonah brought suits and the civil Plaintiff widow degree. second killing. The after verdict for the damages to recover case, that if liberal suggested pro- the criminal returned in was widow, allowing was vision made for he would consider it in passing case for $3,000, civil agreed all minimum punishment.. and award the favor should entered in consented done, costs. was This $3,000 accordingly the widow for for that sum and costs was against $1 and James and for costs W. R. McCullin that “she recover McCullin, therein being provided of the $3,000 action, the sum costs defendants out the same of the attached property sheriff shall satisfy Bradshaw, Charlie administrator him in case of Jonah 0.] Simmons v. McCullin.
Simmons, against the said defendants, the said Char- lie Bradshaw, administrator of Simmons, Jonah recover defendants the of $1 sum costs which the action, sheriff shall out collect of said property.” The property advertised sheriff, obedience to the judgment of the court, and pending said advertisement, applied defendants for and an order obtained the sale of the restraining property and an order to show cause injunction awhy perpetual issue, ground sheriff to sell with- proposed out the homestead. on allotting Judge Lyon found facts, of the order to show hearing him, cause before that James has a McCullin wife and but owns no real child, property, and that W. E. McCullin owns real Sampson County and has a Upon his findings, wife. pleadings, admis- sions, he defendants adjudged that entitled to any *3 exemption in personal property, the and that W. McCullin E.
is entitled to a homestead in the land is him, which owned had, all he and he further that and adjudged the sheriff allot apart set the homestead of E.-W. McCullin before proceeding sell the that surplus to he sell the of the only land and what is the called “reversionary interest” the personal property, and the to the of the apply proceeds judg- payment ment costs. Plaintiff appealed. & E. Butler Wright George plaintiff.
Faison for A. Grady II. defendant. for after the case: It is evident the WalKER, J., that stating entered the of the was -the judgment' parties consent result the between them and intended to the compromise of relieve two convicted the of penalties defendants of heavy pains had In law which violated. accordance with the they agree- the was to one of the ment, changed manslaughter verdict imposed, instead the defendants lightest confining .of penitentiary at hard term. No long labor question duress It of is raised case. the naked presents question, whether the defendant Mc- plaintiff’s appeal, W. E. is to a as against Cullin entitled homestead We judgment. argument observe that the of the defendant’s counsel is *based COURT. IN THE SUPREME McCtjulin.
Simmons assumption entirely almost invitwm, on its appears, face, whereas have taken It is not like the judgment consent parties. verdict, rights, with without a their ascertaining' a case, own such them of its will. and decreeing the sheriff paid, where be adjudged money it is selling have laid off to the defendant before so and set apart allowed land. any, part of the surplus, under, period prescribed from exempt process sale sold execution until this of it can under and no law, part It not necessary ceased to exist. exemption quality inter- to sell what called right “reversionary discuss the Instead of being in .the we have taken of case. est,” view this has all the attributes of a invitwm, that all it, we construe and it judgment, expressly provides, which a levy, former of the real and personal, property) made, shall sold and the attachment, pro- under an costs. tó “satisfaction” ceeds applied it, and sense of view This must be the meaning at the time surrounding the facts and circumstances of the itself. entered, By terms very it was but adjudged it is the sanction of the consent and with appropriated the whole of the property recovered costs, the amount .to exemption. the wife’s joinder are: Was
The only remaining questions condemn the the satisfaction to thus necessary form, in that and, second, husband, Gould the judgment? *4 think right ques with his We that both part exemption? McOullin. answered must defendant W. R. tions be time and in cases that long many It has been held a a dock unless there is required wife’s is not joinder or a lien unless the force, upon eted and which is 8; sec. apart. Const., X, has set Art. homestead been actually Cotton, C., Hughes Hodges, v. 102 N. C., 289; 69 N. Mayho v. Lane, C., C., 155; Joyner Sugg, 109 N. v. N. Scott v. 249; Robinson, Mor 134 N. C., 503; 580; Hodman Shackleford rill. N. O.] V. McCUIXIW. SIMMONS Hughes
In v. Hodges tbe Avery, Court (by said: “The J.) defendant conveyed land mortgage deed to secure money (loaned to him on the land, as to infer). we Until proof is contrary offered, presumption is favor of this power to and the convey, defendant offers no evidence of the existence of a judgment against himself. For the dis purpose of this cussion, there no can be difference a between and an mortgage absolute deed. His wife, first who did living, was'then not join, and did not, therefore, convey her to dower, had she sur vived her husband. But she died is it not neces rights to discuss the sary defendant’s second wife. It suffi cient say neither she nor other person allowed a in the land. No homestead having allotted before was executed since, or the deed of the defendant to the testator plaintiff’s was valid, and passed the land to the grantee for the mentioned purposes therein, subject contingent right (of longer no dower) hanging over it. "We therefore hold that judge ordering erred the sale of the reversionary interest, and should have adjudged the entire interest, instead of the interest reversionary only, be sold, unless debt should the time mentioned.” paid by to the second do question, we not see that judg- ment is none the less effective as a bar because its merits were in whole or in determined, the' part, by agreement of par- ties. seems to us that' It immaterial whether obtained or decision of the court upon points in so far as controversy, its and binding- conclusiveness force concerned, do depend its or upon upon form the fact that the court investigated decided legal prin- ciples involved, is no there substantial reason itwhy just as finally rights effective determine and settle the as if it parties demurrer or ver- dict, nor it should why complete not be between the bar, it, in invitum. conceded parties any judgment It has been highest to have effect, and the courts authority just have held that a stipulation of the after issue joined binding opera- same force and tion the action had estoppel as an been tried on the merits
414 THE SUPREME IN COURT.
SlM&IOHB V. MOCULLIN.
and tbe
Tbe above
perfect
principle
bar.
in
2
stated
tbe text of Black on
sec.
fully
Judgments,
705, and
well
tbe cases in tbe
supported
notes. “A
in
equity,
decree
consent of
compromise
between
upon
tbem,
suit
any subsequent
bar
claim therein
upon
set forth
tbe
compromised
matters
in
among
settled, although not
in
litigated
fact
tbe suit in which
decree was
tbe
rendered.”
S.,
Watson,
R.
U.
113
S.,
Nashville
Co. v.
U.
v.
98
261; Bugley
Co.,
Adler Van Kirk L.
114 Ala.,
v.
561. “There
Tenn., 357;
can
doubt that
be no
tbe
up by
agreement
tbe
tbe
parties, is,
least,
conclusive
say
tbem if
were
tbe
course of
ordinary
Mott,
Felton
proceeding.”
Vt.,
11
148
Am.
(34
Dec. (Extra
v.
Tbe same
we
Anno.), 678).
doctrine,
think,
expressly
approved
this Court.
Long,
C.,
v.
84 N.
Stump-
616¿
or
agreed
it was held that an
order
is binding
set aside or
conclusive
cannot
without tbe con
modified,
sent of both
tbe
of mutual mistake
parties, except upon
ground
or fraud. See
v.
81 N.
v. Mc
Edney
Edney,
C., 1; Kerchner
Eachern,
Gooch,
C., 179,
90 N.
93 N.
v.
C., 455; Vaughan
McEachern,
C.,
92
527. It is said Kerchner
N. C.,
N.
v.
that while tbe terms are settled
tbe
tbe
parties,
judg
same force and effect as if
bad been entered by
ment has tbe
sense,
tbe
regular
and,
becomes
course,
of its
tbe
virtue
sanction.
court, by
Gatlin,
on
special grounds,
was decided
C.,
Lamb v.
N.
said
and tbe same
of Bank
and is not like this case,
may
Commissioners,
there
C.,
involved,
214. Tbe
119 N.
matters
but here tbe
agreement,
were not
held,
subject
it was
or
dis
convey,
otherwise
release,
defendant
sui
juris
or
or
executed,
contract,
of bis
pose
duly
lose bis
sometimes even
entered, and
may
regularly
at
time
tbem tbe
asserting
proper
constitutional
rights by
dis
regular
against him,
A
way.
tbe proper
irregular,
bis
would not be void
even
homestead,,
posing
wrong, by
erroneous,
corrected,
to be
but at most
Graham,
Henderson v.
Robinson Co. *6 does not no sell apply, there was direction to tbe but amount simply judgment for tbe of tbe note. As tbe tbe joinder of not we do not see bus- required, tbe wby wife band cannot part witb bis exemption tbe land should be sold to tbe sum recovered well pay for by mortgage tbe same purpose. Hughes supra. Defendant Hodges, alleges, bis for tbe application injunction against sale, that tbe land is more tbe than suffi cient value to How, tbe claim. can tbe pay then, latter be “satisfied” without tbe land as an entirety, and without selling to tbe regard homestead? tbe view we have taken of tbe case, it necessary Tweed, tbe Dellinger
discuss correctness tbe decision asked to reexamine. Tbe we were Court’s as to personal tbe covered what we ruling property is have said in to tbe homestead exemption.
There was error in and it will be modified judgment, tbe tbe dissolving injunction and tbe land be sold requiring for tbe due and costs, tbe amount allotting payment or personal property exemption. Appellant will recover costs of this Court. / Error.
DEFENDANTS'’ APPEAL. J. The decision in tbe appeal plaintiff’s requires Walker, declare no error us to in this appeal. that there There assigned other reasons that might conclusion, but to state unnecessary them. error. No E. LIFE
M. ROBINSON AND ANNUITY COMPANY. v. SECURITY
(Filed October, 1913.) — insurance, Discriminating Rights Life Rates —New Contract — of Insured. hasaccepted policy one insurance Where insured life life, premium, stipulating the annual own his