Rankin v. . Shaw

SMITH, C. J. (after stating the facts). In Markham v. Hicks, 90 N. C., 204, decided two years since, upon a full consideration of the subject, the Court uses this language in regard to the result reached: “The estate of the debtor, remains after the allotment, as before, the same, whether it be in fee, for life, or for years. It is this estate in its entirety in the exempt land, which the creditor is not allowed to sell under final process, by the mandate of the Constitution, and to which no judgment lien now attaches, when the debt was contracted, or the cause of action occurred, since May 1st 1877.” The clause of the sentence relating to the lien, has since become inapplicable by reason of the amendatory enactment of 1885, ch. 359, but the change in the law does not interfere with so much of the proposition as precedes. It is manifest that if the plaintiffs were to sue out execution, and proceed to enforce their judgments against the lands, treating the attempted disposition of them as void, by reason of fraud, the debtor would be entitled, as against them, to her full homestead, as if no deed had been made, and as to so much as should be ascertained to be exempt, her conveyance could not be in fraud of her creditors, for the simple reason that this part was not accessible to final process. Duvall v. Rollins, 68 N. C., 220; Crummen v. Bennet, Ibid., 494; Arnold v. Estis, 92 N. C., 162; Pate v. Harper, ante, 23. *408 If the whole area of the land should be covered by the allotment, the officer could do nothing, and must return his process unacted on, without resulting benefit to the creditor. The present proceeding is but another form of final process, and must be subject to similar conditions. It must be equally ineffectual, if the fact be that upon an allotment, all the defendant’s land will be required for her homestead exemption. The averment in the answer raises this issue, and if found to be true, arrests the action, as it would further proceedings by the Sheriff. This defence ought, therefore, to have been disposed of before rendering final judgment, and not left to be contingent, upon the action of the Sheriff. If there is no excess, the cause can proceed no further, and no declaratory judgment should have been made in advance, to fit unascertained facts, as they might be determined thereafter. The act of March 11th, 1885, restoring the lien of a docketed judgment upon land set apart as a homestead, and in subordination thereto, if affecting the present case, (and this is by no means admitted), will not aid the plaintiffs, for the action to enforce it is in abeyance, and the statute of limitation, as to the claim, suspended until the homestead exemption terminates. There is error in refusing to have the defence tried, for the further prosecution of the cause is dependent upon it. The judgment must be reversed, and a new trial had in accordance with this opinion. Let this be certified accordingly. Error. Reversed.