93 N.C. 274 | N.C. | 1885
It is very obvious that the complaint alleges a cause of action. The action is not brought to compel the specific performance of a contract, but to recover the money due upon the bond specified in the complaint, and every material fact for that purpose is alleged.
The Constitution, Art. X, sec. 2, establishes the right of homestead, and it provides that the homestead "shall be exempt from sale under execution or other final process obtained on any debt"; but it further provides that it shall not be "exempt from sale for taxes, or for payment of obligations contracted for the purchase of said premises."
At first there was some question as to how it ought to be made to appear of record that the debt sued upon was for the purchase money for land, specified and designated, and therefore not exempt from sale under execution to pay the debt, although it might constitute the homestead or part of it. The courts experienced some difficulty on the subject, and in Durham v. Bostick,
As the action was simply to recover the money due on the bond, it was not necessary to allege the tender of a deed for the land. It might be that the deed had already been made. If it had not been, or if the title to be conveyed was defective, these were matters of defense. And, indeed, it seems that such defenses were set up, considered and determined by the court. No question is presented by the record in these respects for our decision. We are only called upon to decide whether or not the complaint states "facts sufficient to constitute a cause of action," and as to this there can be no doubt.
The exceptions are groundless, and the judgment must be affirmed.
No error. Affirmed.
Cited: Toms v. Logan, post, 277; Durham v. Wilson,