North Carolina Joint Stock Land Bank of Durham v. Bland

*30 Ervin, J. The first objection of appellant to the judgment is founded on the theory that the execution sale and the ensuing deed are void because “the Sheriff failed to allot the homestead to R. E. Bland and his wife, Louisa Bland.” This assumption rests, in turn, upon these three successive and diverse hypotheses: (1) That the acts of the judgment debtors were insufficient in form to waive their homestead rights in the land embraced by the deed; (2) that the judgment debtors were incapacitated by law to waive such rights in the land even if their acts were adequate in form to effect such purpose; and (3) that in any event it was obligatory for the Sheriff to cause a homestead to be set apart to the judgment debtors in the land in question as a condition precedent to a valid execution sale of any part of such land. The first of these presuppositions is clearly not maintainable. A waiver is simply an intentional relinquishment of a known right. In re Will of Yelverton, 198 N.C. 746, 153 S.E. 319; Aldridge v. Insurance Company, 194 N.C. 683, 140 S.E. 706. By their previous writing and their subsequent deed, R. E. Bland and Louisa Bland expressly authorized and specifically ratified the act of the Sheriff in making the execution sale of their land without the allotment of any homestead “to the end that the land might be sold for the highest possible price and to the end that the purchaser at said execution sale would acquire a full and complete title to said land, freed from all homestead rights of said judgment debtors.” They could not have chosen a more unequivocal and efficacious way of manifesting their deliberate intention to forego their homestead rights in the property in controversy. The second and third hypotheses of the appellant on the present phase of the case necessarily arise out of the idea that the right to a homestead exemption is intended to advantage the judgment creditor. This notion is fallacious. The right is created for the benefit of the judgment debtor, and belongs to him. N. C. Const., Art. X, sec. 2; Joyner v. Sugg, 132 N.C. 580, 44 S.E. 122. This being so, a judgment debtor, who possesses legal competency, may waive his homestead rights in specific realty as to a particular judgment. Cameron v. McDonald, 216 N.C. 712, 6 S.E. 2d 497; Pence v. Price, 211 N.C. 707, 192 S.E. 99; Sugg v. Pollard, 184 N.C. 494, 115 S.E. 153; Simmons v. McCullin, 163 N.C. 409, 79 S.E. 625, Ann. Cas. 1915 B, 244. When a judgment debtor does that, the Sheriff may sell the land under an execution issued upon the particular judgment without causing any homestead to be set apart for the judgment debtor, and the sale is effectual against the judgment debtor and the owners of judgments docketed against the judgment debtor subsequent to the docketing of the particular judgment. Sugg v. Pollard, supra; Simmons v. McCullin, supra. *31 The second objection of appellant to the judgment is'based on the contention that the execution sale and the ensuing deed are void because the Sheriff did not exhaust the personalty of the judgment debtors before taking their realty for the satisfaction of the judgment. The execution in the case at bar conformed strictly to Gr.S. 1-313 (1), which prescribes that an execution against the property of a. judgment debtor shall require the Sheriff “to satisfy the judgment out of his personal property, and if sufficient personal property cannot be found out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter.” Divers reasons render appellant’s second objection to the judgment untenable. Manifestly, the statute can apply only in case the judgment debtor owns both personal and real property. Since the stipulation of the parties as to the facts does not disclose that the judgment debtors possessed any personalty when the realty was levied upon and sold, it must be presumed that the Sheriff performed his duty and levied on the land because he could not find any personal property. Knox v. Randall, 24 Minn. 479; Godman v. Boggs, 12 Nebr. 13, 10 N.W. 403; Vilas v. Reynolds, 6 Wis. 214. Besides, the statutory provision that the personal property of a judgment debtor is to be exhausted before recourse is had to his realty for the satisfaction of a judgment is intended solely for the benefit of the judgment debtor. Stancill v. Branch, 61 N.C. 306, 93 Am. Dec. 592; Simpson v. Hiatt, 35 N.C. 470; Sloan v. Stanly, 33 N.C. 627. Consequently, nobody else can object if the Sheriff levies on and sells land without first exhausting the judgment debtor’s personalty. Whitaker v. Petway, 26 N.C. 182; McCoy v. Beard, 9 N.C. 377, 11 Am. Dec. 773. Moreover, the judgment debtor waives or forfeits his right to have his personal property taken in preference to his land for the satisfaction of a judgment by requesting the Sheriff to levy upon the land in the first instance, or by failing to disclose his personal property when the Sheriff is about to make a levy. Stancill v. Branch, supra; Sloan v. Stanly, supra. The third objection of appellant to the judgment is predicated upon the assumption that the execution sale and the ensuing deed are void because the Sheriff did not make his formal return to the execution or execute the deed to the purchaser at the execution sale within ninety days from the issuance of the execution. This objection is insupportable. The sale under execution took place 24 August, 1936, and was held open for ten days for the receipt of an advanced bid in conformity to G.S. 45-28. The statutory period expired without the bid being increased, and the right of the purchaser at the-execution sale to a deed from the Sheriff thereupon became absolute. Dillingham v. Gardner, 219 N.C. 227, 13 S.E. 2d 478; Building & Loan *32 Assn. v. Black, 215 N.C. 400, 2 S.E. 2d 6; Pringle v. Loan Asso., 182 N.C. 316, 108 S.E. 914. Thus, the right to the deed accrued during the life of the execution, i.e., within ninety days after its issuance. G.S. 1-310. This being true, the validity of the execution sale is not affected by the delay of the Sheriff in making his formal return to the execution or in executing his deed to the purchaser. McCullen v. Durham, 229 N.C. 418, 50 S.E. 2d 511; 33 C.J.S., Executions, sections 270 and 330. The deed has relation back to the sale and operates to pass title from that time. Cowles v. Coffey, 88 N.C. 340; Dobson v. Murphy, 18 N.C. 586. What has been said fully sustains the conclusion of the trial court that the Sheriff’s deed is valid and “conveyed the title to the lands therein described” to F. B. Bland. The adjudication as to the ownership of the property by the defendant, F. B. Bland, is supportable upon the other ground specified by the trial court. The judgment debtors joined in the execution of the deed as “parties of the first part.” In so doing, they did more than waive their homestead rights in the land embraced thereby. They also expressly conveyed such land to F. B. Bland “and his legal representatives in as full and ample manner as the said first parties are authorized and empowered to convey the same.” Hence, the court below rightly concluded that the deed “would have passed title to the lands therein described independently of any acts or participation by the Sheriff under the execution sale, but subject to any existing judgment lien.” The appellant took an assignment of the judgment which was rendered in favor of the North Carolina Joint Stock Land Bank of Durham and against R. E. Bland and Louisa Bland by the Superior Court of Durham County on 2 October, 1933. This judgment was docketed in the Superior Court of Lenoir County on 11 October, 1933, and became a lien on real property in Lenoir County owned by the judgment debtors at the time of the docketing or acquired by them at any time thereafter “for ten years from the date of the rendition of the judgment.” The land in controversy was never allotted to the judgment debtors as a homestead. Moreover, neither the appellant nor his assignor, the North Carolina Joint Stock Land Bank of Durham, was ever restrained from proceeding on the judgment “by an order of injunction, or other order, or by the operation of any appeal, or by a statutory prohibition.” Consequently, the lien of the original judgment expired at the end of ten years from the date of its rendition, i.e., on 2 October, 1943. G.S. 1-234; G.S. 1-306; McCullen v. Durham, supra; Cheshire v. Drake, 223 N.C. 577, 27 S.E. 2d 627; Lupton v. Edmundson, 220 N.C. 188, 16 S.E. 2d 840. The Legislature has decreed that an action upon a judgment shall not “have the effect to continue the lien of the original judgment.” G.S. 1-47 (1). Hence, neither the action on the original judgment, which was commenced on *33 2 September, 1943, nor the new judgment entered in such action on 15 November, 1943, extended the lien of the original judgment beyond 2 October, 1943. The new judgment could not become a lien on any realty in Lenoir County until it was docketed on the judgment docket of the Superior Court of Lenoir County. G.S. 1-234. At that time E. E. Bland and Louisa Bland had no interest in the 29 acres. It manifestly follows that the title acquired by the defendant, F. B. Bland, under the deed of the judgment debtors would have been freed from the lien of the original judgment on 2 October, 1943, even if the execution sale and the 'Sheriff’s deed had been void. Since such matter has not been mooted by the parties, we refrain from expressing any opinion as to whether the appellant ought to have proceeded by a motion in the cause rather than by this independent action. Finance Co. v. Trust Co., 213 N.C. 369, 196 S.E. 340; Weir v. Weir, 196 N.C. 268, 145 S.E. 283. The judgment of the court below is Affirmed.