Marshburn v. . Lashlie

Clark, J.: The execution sufficiently conforms to -the judgment. The variance is technical and immaterial. Rutherford v. Raburn, 32 N. C., 144; Green v. Cole, 35 N. C., 425; Hinton v. Roach, 95 N. C., 106; *240 Wilson v. Taylor, 98 N. C., 275; Code, Sections 448 and 1347. A purchaser at a judicial or execution sale has a prima facie title, and a defendant in an action of ejectment, who seeks to avoid such title on the ground of homestead rights, must specifically plead the facts upon which the homestead right depends (Allison v. Snider, 118 N. C., 952; Fulton v. Roberts, 113 N. C., 421; Dickens v. Long, 109 N. C., 165; Edwards v. Taylor, supra) unless they are admitted or appear in the plaintiff’s evidence. Mobley v. Griffin, 104 N. C., 112. Here, the defence of the homestead is not set up in the answer. It appeared, however, in the evidence offered by the plaintiff that the homestead of the defendant, H. C. Lashlie, was allotted in another tract of land and that he did not except to such allotment. It is contended, however, for the defendants that, if the conveyance of the tract of land in dispute, by H. 0- Lashlie to D. D. Lashlie, is found by the jury to be fraudulent, II. C. Lashlie can still set up his claim to homestead therein. Crummen v. Bennet, 68 N. C., 494; Arnold v. Estis, 92 N. C., 162; Rankin v. Shaw, 94 N. C., 405; Dortch v. Benton, 98 N. C., 190. But those decisions apply only where no homestead was set apart, in which case, when the land is adjudged to be the property of the fraudulent grantor, he is entitled to his homestead therein. Crummen v. Bennet, supra, did not meet the hearty approbation of the profession when rendered, and though it is now too well settled, to be shaken the courts have never gone beyond it. Accordingly, a line of cases has equally as well settled the principle that where the homestead is allotted an4 no exception is filed thereto, if other land is adjudged to have belonged to the debtor at the time *241 of'the allotment and to have been conveyed by him in fraud of creditors, there is an estoppel of record against such debtor, which prevents him from claiming a homestead in the land, when the fraudulent conveyance is-set aside in an action brought by the purchaser at execution sale. Whitehead v. Spivey, 103 N. C., 66; Spoon v. Reid, 78 N. C., 244; Burton v. Spiers, 87 N. C., 87, which are cited with approval in Springer v. Colwell, 116 N. C., 520. In the first two cases, as in the present one, the homestead allotted was less than $1,000. Whitehead v. Spivey, supra. Here, the homestead allotted was 32 acres of land with dwelling and buildings-thereon, but valued at only $40. Whether this was the true value' or not, the homesteader had had his day in court, his homestead was allotted, and the return of the allotment filed and recorded, he did not claim it in the land now in controversy, he filed no exception, and the allotment is res judicata. When the case goes back, and the defendant D. D. Lashlie shall set up his deed from H. C. Lashlie, it will be open to the plaintiff to attack it for fraud. ’ Upon that issue the result of the action must depend, for H„ C. Lashlie in any event is estopped to assert a homestead therein. In no aspect of the case can the non-suit be sustained, and it must be set aside. Error. Douglas, J., dissents.