Rogers v. . Kimsey

*563 Smith, C. J. (after stating the case.) W ith this recital of the facts in the case in the aspect in which the allegations and the evidence presented it, we proceed to examine the rulings to which exceptions are taken. 1. The rule is too well established, and its subversion would lead to too many grave and disastrous consequences to require argument or authority to support the proposition that every defence available at the time, and which a defendant could set up at the trial, in the absence of fraud is conclusively determined by the judgment, and cannot be again asserted while the judgment remains in a controversy between the same parties. The testimony which proposed to inquire into the validity of the note thus reduced to a final judgment was clearly inadmissible and was properly rejected. Jordan v. James, 3 Hawks, 110, and other cases. 2. The Statute of Limitations interposes no impediment to the prosecution of the action. It falls under those enacted in 1868, since which the note was made and the judgment on it rendered. The letters testamentary issued in 1880, since which the judgment has been renewed, and the suit was brought in 1884. This appears in the record and ádmis-sions in the pleadings. 3. The time of the transfer of the note, whether before or after its maturity, was wholly immaterial, and no proof thereof was admissible. 4. The remaining inquiry is as to the existence and effect of the alleged lien of the judgment upon the debtor’s lands upon the conveyance of the legal estate by the debtor’s deed to the defendants Cooper and Aiken. No homestead was laid off during the testator’s life-time, nor was any attempt made to enforce the execution against the land. The right to such homestead terminates at his death without wife or infant children surviving, and hence if a lien has been acquired it may now be enforced: *564 The judgment lien attaches when “docketed on the judgment docket of the Superior Court” to the real property of the debtor in the county where the same is docketed, “ which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire thereafter for ten years from the date of the rendition of such judgment.” The Code, § 435. “ Real property,” as used in the Code of Civil Procedure, in which the judgment lien is given, is therein defined to be “co-extensive with lands, tenements and hereditaments,” title 16, § 388, that is of the same wide import and meaning. The lien of the plaintiff’s judgment did, then, at its rendition, spring up and adhere to the debtor’s estate in the lands, subject to his recognized right to the homestead exemption, and this lien followed the transfer of the estate to the contesting defendants, Cooper and Aiken, which they took in subordination thereto. The lien is not affected by the act of 1876-77, ch. 253, even conceding its validity (and as an attempt to enlarge the homestead it has been declared unconstitutional and inoperative in Wharton v. Taylor, 88 N. C. 230), since that enactment, declaring that there shall be no judgment lien upon the homestead, is confined to “debts contracted or causes of action accruing since May 1st, Í877”; while here the debt was contracted on April 18th, 1874, and became due three years thereafter, and before the time specified in the statute. And even this act, displacing the statutory lien, as soon as the attention of the General Assembly was called to it by the decision in Markham v. Hicks, 90 N. C., 204, was amended at the next session by restoring the lien to that class of judgments. Acts 1885, ch. 359. This legislation recognizes the existence of the lien upon the land subject to exemption for the limited period, and *565 the right to enforce which, in an appropriate manner, arises at its expiration. It is, then, the duty of the executor to proceed to convert the land into assets in order to the satisfaction of this and the judgments of any other creditors, if there he such, whose liens prevail over the title acquired under the deed, for the action is that of creditors, among whom the proceeds must be divided according to their respective claims. ■ Even if the original judgment had become dormant it would sustain the present proceeding and retain its precedence as such. State v. Johnson, 7 Ired., 231. There is no error. Affirmed.