Crouch v. . Crouch

Clark, C. J. Tbe plaintiff obtained judgment ag'ainst Laban E. Hoke, tbe intestate of defendant, in Alexander County 3 July, 1888, wbicb was docketed in Caldwell, 18 November, 1888. Execution issued 22 March, 1889, from Alexander County to tbe sheriff of Caldwell, who summoned three appraisers on 25 April, 1889, whose allotment to said Hoke of bis homestead included a tract wbicb is described in their return as “First tract, valued at $36, known as tbe Fisher land.” This is tbe tract wbicb tbe plaintiff is seeking to subject to satisfaction of bis judgment. Tbe apjoraisers’ report was returned to tbe clerk of Caldwell Superior Court, in whose office it was found 16 August, 1909, in a metallic filing case, labeled “Homesteads.” Tbe sheriff sold all tbe lands of said Hoke not embraced in tbe appraisers’ return on 5 August, 1889, tbe plaintiff being tbe purchaser thereof. On 21 September, 1889, said Hoke executed a deed to tbe defendant Felix Abernathey for tbe “Fisher land,” wbicb bad been allotted to him as a part of bis homestead. Hoke died 16 July, 1909, leaving him surviving bis widow and two children, both of whom are of age. This action was begun 4 October, 1910, to subject tbe “Fisher tract” to payment of plaintiff’s judgment, and plaintiff asked that tbe court decree the deed from Hoke to Abernathey void as against tbe lien of tbe plaintiff’s docketed judgment; that Abernathey be directed as trustee to convey to tbe purchaser at execution sale and that defendant administrator be authorized to sell tbe land and apply tbe proceeds to tbe satisfaction of tbe plaintiff’s judgment. Tbe court held that Abernathey bad no actual notice of tbe allotment of tbe land in question as a part of Hoke’s homestead exemption, and that tbe constructive notice is insufficient because tbe description was not *449 definite and tbe return of tbe apjiraisers was not filed in tbe judgment roll of tbe action, citing Bevan v. Ellis, 121 N. C., 225. We think tbe description is sufficient. Ray v. Thornton, 95 N. C., 575. Tbe judgment roll in tbe action was not in Caldwell County, but in Alexander, and bence tbe appraisers’ return could not be filed in tbe judgment roll in Caldwell. Besides, Bevan v. Ellis, supra, bolds tbat registration of tbe homestead is not necessary except wben tbe exemption is made on tbe petition of tbe homesteader. Abernathey bought with notice of tbe docketed judgment against Hoke, and, of course, of tbe fact tbat all bis land was subject to tbe lien of tbe judgment. If at tbe time Abernathey received bis deed tbe lien of tbe judgment bad expired by tbe lapse of ten years, then it would be admissible for him to claim tbat tbe statute of limitations bad not -been suspended as to tbe judgment because tbe property was not embraced in a valid allotment of tbe homestead. But be bought subject to tbe lien of tbe judgment and has been protected for twenty years from execution issuable thereon by virtue of such exemption. Had there been any informality as to tbe allotment of tbe homestead, it was for tbe plaintiff, not tbe defendant, to claim benefit from its invalidity. It is true tbat under tbe act of 1905, cb. Ill, now Eevisal, 686, tbe homestead exemption ceased as to this tract of land wben tbe homesteader conveyed it to Abernathey. But tbe act specifically provides tbat it shall not have any retroactive effect; therefore, tbe land did not become subject to plaintiff’s execution till 1905, and tbe defendant has neither held tbe land seven years under color of title nor isvtbe lien of tbe judgment barred by tbe ten years statute of limitations, and, indeed, tbe plaintiff has not pleaded either statute. Tbe plaintiff was entitled to have tbe land subjected to tbe payment of bis debt. He might have proceeded more simply by selling under bis execution. Eeversed.