Befarrah v. Spell.

AlleN, J. A vendor’s lien for the purchase money “does not attach to personalty” (39 Oye., 1804), and in this State we have gone further and have refused to follow the English doctrine, giving such a lien in sales of land. “Ever since the leading case of Womble v. Battle, 38 N. C., 182, decided in 1844, it has been settled in this State that a vendor of real estate who has convoyed it by deed has no lien upon the land for the purchase money, and that the English doctrine of the purchase-money lien does not obtain here.” Lumber Co. v. Lumber Co., 150 N. C., 288. It follows that his Honor was in error in holding that the plaintiff was entitled to a lien upon the proceeds of the sale of the stock of goods to secure the purchase money notes, and there being no lien the defendant is entitled to his exemption unless he has waited too long, or his application cannot be made because no execution or process has issued to enforce payment of the plaintiff’s judgment. The statute (Kev., sec. 695), following the language of the Constitution (Art. X, sec. 1), gives to each resident of the State a personal property exemption of $500 out of his own property as against an execution or other final process, which is to be set apart on his demand, and, unlike the homestead exemption, which must be allotted before levying upon the land, the right to the exemption may be insisted on at any time before the sale or the appropriation of the property by the court— “at the last moment” (Gardner v. McConnaughey, 157 N. C., 482), and the order of the court directing the payment of the money is final .process within the meaning of the Constitution. The case of Chemical Co. v. Sloan, 136 N. C., 122, is decisive of both points. In that case the action was brought to recover money, the proceeds of the sale of certain fertilizers alleged to have been unlawfully converted by the defendant, a resident of this State, as agent of the *234 plaintiff. The latter sued out an attachment upon the allegation in its affidavit that he had attempted to dispose of his property and was about to dispose of and secrete the same with the intent to defraud the plaintiff and his other creditors. The attachment was levied on personal property of the defendant, the value of which was less than $500. The property so attached being perishable, was sold by the sheriff under an order of the court, and the sheriff held in his hands the proceeds of the sale subject to the further order and direction of the court. The defendant claimed his exemption out of the money so held by the sheriff. The plaintiff resisted the claim upon the ground that' the demand for the allotment of the exemption was not made until after the sale. The court ordered the allotment to be made by the sheriff. The defendant moved to vacate the attachment but the court denied the motion. There had been no judgment in the case and consequently no order directing the application of the money to the payment of the plaintiff’s claim. The Court said, in discussing the question presented: “We do not see why the defendant is not entitled to his exemption upon the foregoing facts. The Constitution exempts the personal property of any resident of this State to the value of $500 from sale under execution or other final process. This language is too plain and explicit for any possible misunderstanding of its meaning. It is only when the property is about to be subject to the payment of a debt by final process that the last opportunity is left to the defendant to claim his exemption. At any time before this stage of the proceeding is reached he may make his demand and become entitled to an allotment of the exemption. This is perfectly clear without light upon the subject from any of the authorities. A warrant of attachment is mesne process and is nothing more than a provisional remedy. It is ancillary to the relief sought in the principal action and is intended to preserve the property, or its proceeds if it has been sold as perishable, in the hands of the sheriff or in the custody of the law to abide the event of the suit. The defendant may demand his exemption when the warrant is levied on his property and it is taken out of his possession, or he may wait until the final process is issued and the property is about to- be appropriated by sale to the satisfaction of the same.” The facts in the Sloan case were more favorable to the plaintiff than in this because in the Sloan case the motion to dissolve the attachment was denied, while in this it was allowed. The plaintiff also objects to the allotment of the exemption because it does not appear that the defendant is a resident of this State, but as this objection was not made in the Superior Court and the ruling of his Honor was on a different ground, and the defendant was engaged in business in Sampson County, we would not be justified in denying *235 tbe right to the exemption because of lack of more definite and specific rinding as to residence. Upon the record as it now stands the male defendant is entitled to his exemption. Reversed.