Wright v. Bond.

Euroiibs, J. The plaintiff has three judgments against one Henry, amounting to more than $300, docketed in the clerk’s office of the Superior Court of Bertie County on the 8th day of January, 1900, and therefore a lien on any land lie may own, lying in Bertie County, for ten years from the date of docketing. The plaintiff has caused executions to be issued on said judgments, and placed them in the hands of the defendant, who is sheriff of said county of Bertie. At the *40 time these executions were issued and placed in the bands of the defendant sheriff, the said Henry, defendant in said judgments, owned the remainder after the dower estate of his mother in thirty-one acres of land lying in said county. And it is agreed that said land is worth $303.50, and that said Henry owns no other real estate; that the defendant levied said executions on said land, and advertised the same for sale thereunder, but before any sale was made the mother released and conveyed all her interest in said thirty-one acres of land to the defendant in said judgments, and he demands that his homestead exemption shall be laid off and assigned to him thereon. This the defendant proceeded to have done, and, there being no excess, declined to sell said land for the plaintiff’s debts. The plaintiff thereupon brings this action, and aslss the Court to issue a writ of mandamus commanding the defendant to proceed to sell said land, and to apply the proceeds to his judgments. It seems to us that, if the plaintiff has a remedy against the defendant,- it is not in this action. The executions themselves are commands to the sheriff to proceed to sell such property as the defendant Henry may have, liable to execution and sale. And, if he has not done this, he and his sureties are liable by attachment, and in an action upon his bond; and there is no allegation or suggestion that the defendant is insolvent, or that his bond is not good. And, as a matter of law, we know that the plaintiff’s lien' continues for ten years, and longer, if he is prevented from enforcing it on account of the homestead; that, while the writ of mandamus will issue in proper cases to compel public officers to perform ministerial duties, it must be in cases where the party asking it does not have the ordinary legal remedies by which he can have redress for his wrongs. Hughes v. Commissioners, 107 N. C., 598. But from, the argument of counsel, it would seem that it was expected that we should decide whether *41 tbe defendant Henry was entitled to have bis homestead in tbis land; and, while we can not admit that tbis question is properly before us, it may be not improper for us to express our opinion upon tbis question. Tbe plaintiff admits that, if tbe defendant Henry bad acquired bis mother’s life interest in tbis land before be docketed bis [judgment, be would be entitled to bis homestead. But be contends that under tbe ruling of tbis Court in Murchison v. Plyler, 87 N. C., 79, tbe defendant Henry would not have been so entitled at tbe time be docketed bis judgments, and tbe acquisition of tbe life estate after that time was a fraud on bis rights. Tbis, it seems to us, would be to reverse tbe doctrine of frauds. The question of fraud is not unfrequently presented where a debtor disposes of bis property. But no case has been called to our attention, and we do not think any can be found, where tbe creditor alleged fraud upon tbe ground that the debtor bad acquired more property than he bad when tbe debt was made or tbe judgment taken. Tbe plaintiff, by docketing bis judgment, acquired no estate in tbe land. His docketed judgment was only a lien on tbe land, and be has that now. He has been deprived of no vested right, and we. are at a loss to see what legal right be has been deprived of. Tbe judgment below, refusing tbe mandamus, is affirmed. Affirmed.