Crow v. . Morgan

Clarkson, J. (1) We think the homestead exemption was not properly laid off. Constitution of N. C., Art. X, sec. 2, is as follows: “Every homestead, and the dwellings and buildings used therewith, not exceeding in value one thousand dollars, to be_ selected by the owner thereof, or in lieu thereof, at the option of the owner, any lot in a city, town, or village, with the dwelling and buildings used thereon, owned and occupied by any resident of this State, and not exceeding the value of one thousand dollars, shall be exempt from sale under execution or other final process obtained on any debt. But no property shall be exempt from sale for taxes, or for payment of obligations contracted for the purchase of said premises.” A mortgagor of lands is entitled to his homestead exemptions as against the lien of a judgment creditor. In Chemical Corp. v. Stuart, 200 N. C., 490 (492-3), is the following: “In enforcing a judgment lien, should prior recorded mortgages and other encumbrances be taken into consideration in arriving at the value of a homestead, or should the homestead be allotted subject to and burdened with prior encumbrances as though they did not exist? We think the homestead should be allotted subject to and burdened with prior encumbrances as though they did not exist. This has been long the practice and procedure in this jurisdiction.” The matter is also thoroughly discussed in Cheek v. Walden, 195 N. C., 752. Farris v. Hendricks, 196 N. C., 439. The homestead exemption was not laid off in accordance with the Constitution and statutes on the subject. See Cheek v. Walden, supra; Duplin County v. Harrell, 195 N. C., 445; Bank v. Robinson, 201 N. C., 796. (2) We think the'personal property was not properly levied on. Article X, section 1, of the Const, of N. C. is as follows: “The personal property of any resident of this State, to the value of five hundred dollars, to be selected by such resident, shall be and is hereby exempted from sale under execution or other final process of any court, issued for the collection of any debt.” The right to the personal property exemption exists not by virtue of the allotment, but by virtue of the Oonstitution, which confers it and *156 attaches the protection to the debtor, before the allotment or appraisal. Lockhart v. Bear, 117 N. C., 298. In laying off the personal property exemption of a debtor, the property upon which there is no mortgage lien must be first exempted. Cowan v. Phillips, 122 N. C., 72. N. C. Code, 1935 (Michie), sec. 737, “Personal property appraised on demand.” A debtor may legally demand his personal property exemption at any time and to the last moment before the appropriation thereof by the court, and the order of court directing a payment of the money derived from the sale of such property is final process within the meaning of the Constitution giving the creditor such right until execution or other final process. Befarrah v. Spell, 178 N. C., 231. The creditor, as well as the debtor, has the right to have the constitutional provisions before mentioned carried out, as written, and in compliance with the statutes on the subject. This was not done in the present case. The procedure is set forth under “Homestead and Exemptions,” N. C. Code, 1935 (Michie), subch. 11. See the forms of “Appraisers’ Return,” sec. 751. For the reasons given, the judgment of the court below is Reversed.