Formeyduval v. . Rockwell

Faiecloth, C. J. : II. C. Rockwell died intestate in 1874 and J. W. Ellis qualified as administrator on the estate. In 1893 the plaintiff qualified as his successor d. b. n. In 1876 judgments were entered against the original administrator, who in 1878 filed a petition before the clerk against the minor heirs of the deceased to sell the lands for assets. The heirs, by their guardian, answered the petition admitting the allegations and asking that a homestead be assigned to them. The clerk granted a license to tell the lands, after laying off and assigning homestead and dower to the widow and heirs-at-law. No dower was ever laid off. The widow died and the yoxzngest child arrived at 21 years of age before this action commenced — they having occupied the homestead premises to the present time. The excess of the homestead was sold and this action was commenced in 1893 to sell the homestead estate for assets to pay said judgments, &c. The defendants, said heirs, now answer and allege that said homestead was not legally assigned and rely on the statute of limitations in bar of said judgments. This defence is at least ungracious after the full enjoyment of *324 the constitutional homestead provision. They say the assignment of the homestead was not according to law in that it was assigned to the children and the widow, and that the return in said proceeding is void. Referring to the record wefind that defendants demanded that their homestead be assigned and the clerk ordered that the excess be sold “first assigning to the heirs-at-law of H. C. Rockwell a homestead of the value of $1,000,” from which judgment the plaintiff appealed to the Judge of the Superior Court. The commissioners report that “having been duly summoned and sworn to act as appraisers of the homestead” of the widow and the heirs, they proceeded to do so, and describe the lands assigned folly, as exempt from sale by the administrator or under execution according to law, and the sheriff certifies that the return was made and certified in his presence. The sale was made and confirmed by the Clerk and the report of sale was confirmed by the Judge. The case sent to this Court states that the homestead return was filed in the Clerk’s office with the papers in said proceeding and that said original homestead return was registered in the office of the Register of Deeds. The contention of the defendants is that it does not appear that said homestead was laid off as prescribed in The Code, Sections 502-515 inclusive, and is therefore void, and that said judgments are barred by the statutes of limitations. The right to a homestead is guaranteed by the Constitution, and the legislature prescribes certain methods oflay-ing it off, in the Sections referred to, as the convenient and practical modes of doing so. "Whilst the record does not set out particularly and in detail the proceedings in the case, still it sufficiently appears that the main purpose was accomplished under the direction of the court having juris *325 diction of the parties and the subject of the action, and that neither party excepted to what was done until after the full benefit of the constitutional provision had been enjoyed by those entitled to it. The objection that the assignment was to the widow and the children is without force as it was simply surplusage as to her. The allotment of a homestead to one having no right thereto is void and may be attacked collaterally, as if it be assigned to the widow alone, when minor children are living, and they would not be estopped. Williams v. Whit aker, 110 N. C., 393. A complete answer to the defendant’s contention is that an allotment of a homestead cannot be collaterally attacked by the judgment dedtor or any one claiming under him. If either party is dissatisfied with the assignment, his remedy is found in The Code, Sec. 519. The homestead right is a vested right and cannot be destroyed by any irregularity in the proceeding or want of procedure in the manner prescribed in The Oode; therefore, when a failure in those methods occurs, it can, “in order to enforce the right,” be accomplished by other methods by the proper tribunal. This has been done by the Superior Court under the direction of this Court, in a case where the conditions were such that neither the Sheriff nor a justice of the peace could have the allotment made. Littlejohn v. Egerton, 77 N. C., 379. The statute of limitations does not run against a judgment during the existence of the homestead. Act 1885, Ch. 359 ; Act 1887, Ch. 17 ; Act 1895, Ch. 397. We find no error in the judgment below. Affirmed.