Coble Ross v. . Thom

Reake, J. The premises in dispute were regularly “ valued and laid off” to the defendant as his homestead, and therefore it was not subject to sale, under execution. Admitting that to be trae, still the plaintiff says that there was a re-allotment of the defendant’s homestead under section 20 of the Homestead Act, and that the premises in dispute, were not embraced in the re-allotment. And whether that is so, is the question. The re-allotment was by metes and bounds, of a tract of land of eighty acres, including the dwelling and buildings, and one-half interest in .a mill. The re-allotment was as follows : “ We value the place on which he lives at $900, and the remainder of the homestead gives him an interest .of one hundred dollars in his half of the mill.” This is so vague and indefinite as to amount to nothing. Grant that by reference to the first allotment, “ the place on which he lives” can be made sufficiently certain, as that is not the matter in dispute, yet what can be made of “ an interest of $100 in his half of the mill,” as an allotment of a homestead, to be exempt from execution ? Suppose the $100 to be a charge upon the real estate, (the mill,) how is it to be realized ? Only by a sale. And yet the homestead is to be exempted *123 from sale. It is not an allotment of one-tenth undivided share of the mill, or of one-tenth toll-dish, even if that would do, but an interest of $100. This is invalid. There is another objection to the re-allotment. The form prescribed in the statute for the return of the appraisers, begins as follows : “ The undersigned having been duly summoned and sworn,” &c. And section 20 provides that in a re-allotment the trustees shall shall take the oath prescribed for appraisers. In this case the return begin, “We, the undersigned, having been duly summoned to re-assess and allot,” &c., saying nothing about being sworn. We think this a fatal defect. Smith v. Hunt, 68 N. C. Rep., 482. There are other fatal defects in the re-allotment, which it is not necessary to notice. No error. Pee CuRiam. Judgment affirmed.