Keener v. . Goodson

Ashe, J. The first contention of the defendant was, that the record of the judgment produced in evidence did not show a valid judgment, and that the sale thereunder was void, and the plaintiff acquired no title to the land by the sheriff’s deed. The counsel insisted that the judgment upon the award was interlocutory, and that the award itself was defective, because the arbitrators did not find the facts. The counsel argued these *276 points as if the order of reference was under The Code of Civil Procedure; if it had been so, there would have been a good deal of force in his 'position; but he seems to have entirely overlooked the distinction between a reference under The.Code and a reference to arbitrators, and their award to be a rule of court. The provisions of The Code of Civil Procedure have not repealed the common law practice of reference to arbitrators. That practice is still extant, notwithstanding The-Code. Crisp v. Love, 65 N. C., 126; Gudger v. Baird, 66 N. C., 438; Hilliard v. Rowland, 68 N. C., 506. Arbitrators are not bound to find the facts. The effect of a reference to arbitrators is very different from that of a reference under The Code. Arbitrators may choose an umpire; they are not bound to find the facts separately from their conclusions of law ; they are not bound to decide according to law, and their award may be general; thus, “that plaintiff recover!-and costs.” Lusk v. Clayton, 70 N. C., 184; Pickens v. Miller, 83 N. C., 543. And where the award is made and no exceptions taken, or, if taken, not sustained, the practice has uniformly been for the court to render judgment according to the award. In England, where the submission of a cause to arbitrators was made a rule of court, the practice was to grant an attachment for all disobedience of a rule of court to stand to the submission and award. But it has been said by Chief-Justice Ruffin that, instead of the attachment in this state, the practice, from a period so early that no one of the profession knows when it did not exist, has been to enter judgment for the debt or damages according to the award. Cunningham v. Howell, 1 Ired., 9; same principle in Simpson v. McBee, 3 Dev., 531. In the former of these cases, where the judgment was sustained by this court, the entries were very similar to those in this case. There, there was an order of reference submitting the cause to arbitrators, whose award was to be a rule of court. An award was made and returned that Hyatt should pay to the plaintiff the sum of $155, and there was judgment for the sum of $155, according to the award. *277 The defendent further insisted that the judgment was not valid because it was not signed by the judge. In Rollins v. Henry, 78 N. C., 342, it was held that, “the requirement that the judge shall sign all judgments is merely directory.” In that case the judgment docket of the superior court of Buncombe was offered in evidence, which showed a judgment in favor of B. H. Merri-mon against W. L. Henry, dated November 20,1869. Defendant objected to its admission, because it was not signed by the judge and was not a full copy of the judgment-roll. It was, however, admitted, and this court held it was competent. The second ground of the defendant was, that the homestead as laid off was color of title, and the seven years’ adverse possession under it barred the plaintiff’s recovery. We do not concur with this proposition. A color of title is defined to be a writing upon its face professing to pass title to land. Tate v. Southard, 3 Hawks, 119; Dobson v. Murphy, 1 Dev. & Bat., 586. The assignment of homestead is in no sense a conveyance of land, nor does it profess to pass any title whatever. How can it, when the owner’s original title continues in him? It in no way changes his title. It creates in him no new estate. It has no other effect than simply to attach to his existing estate a quality of exemption from sale under execution. Littlejohn v. Egerton, 77 N. C., 379; Gheen v. Summey, 80 N. C., 187; Chant v. Edwards, 86 N. C., 513. Our opinion, therefore, is that the proceedings assigning to the defendant his homestead do not constitute color of title. The defendant’s third ground is, that he was entitled to hold his homestead in the land against the demand of the plaintiff. • We think differently. It was agreed on the trial that the judgment under which the plaintiff claimed his title to the land was founded upon a contract made prior to 3868. This admission settles that question. We need not at this day cite authorities to show that a land owner has no right to a homestead against a judgment founded upon a contract made prior to the adoption of the constitution of 1868, and if in such *278 a case it were the duty of the sheriff to have the homestead laid off’ before sale, he was not bound to .do so here, because it was manifest there was no excess to be levied upon, for the defendant’s homestead had already been allotted to him, and it was assessed by the appraisers to be worth less than one thousand dollars. The other ground of the defendant, that the plaintiff’s action could not be sustained because instituted more than a year after the nonsuit had been entered in the case of Johnson v. Qoodson, in the circuit court, is without any force. The statute allowing actions to be brought within a year after judgment of nonsuit, was intended to extend the period of limitation, but not to abridge it. There is no error.. The judgment of the superior court of Lincoln county is affirmed. No error. Affirmed.