65 N.C. 530 | N.C. | 1871
The Court considering said return sufficient in law, refused the motion, from which ruling the plaintiffs appealed.
The land mentioned in the vendi. expo., was subject to the homestead exemption of the defendant in the execution; and no part could be sold until the homestead was laid off as required by law. As the homestead was not claimed by the owner, the Sheriff was not bound to lay it off, unless his fees were paid or tendered by the creditor in the execution. Lute v.Reilly,
Only the interest of a debtor in land, in excess of the homestead, can be levied upon and sold; and this excess must be ascertained by *412 appraisers properly appointed. The costs of this proceeding may be charged in the officer's bill of fees, and collected out of the excess; but if there is no excess, the Sheriff has no direct means of obtaining his costs. The law therefore does not require the sheriff to act in the matter, until his fees are paid or tendered by the creditor, for whose benefit the services are to be rendered. In our case this precedent duty was not performed by the plaintiffs, and they have no right to complain that the Sheriff did not render the service of laying off the homestead, and selling the excess. An amercement is a penalty and ought not to be enforced by a Court of Justice, at the instance of a party, who (532) has not performed precedent duties required of him by the law.
The Sheriff was not in default as the plaintiff did not pay or tender the fees for the required service.
There is no error in the ruling of his Honor; and the judgment is affirmed.
Per curiam.
Judgment affirmed.
Note. — The same parties plaintiffs had another cause in this Court involving the same question which was decided in accordance with the principles enunciated in this case.
Cited: Stokes v. Smith,
