Cox v. . Boyden

Manning, J. The rulings of his Honor and the referee as to the validity of the allotment of the homestead of N. A. Boyden *525 under execution issued on tbe Susan Cogbill judgment from the Superior Court of Rowan County, though at the time that judgment was not docketed in Surry County, are, in our opinion, sustained by the former decisions of this Court. It was held in Bevan v. Ellis, 121 N. C., 224, that it was not necessary to have the appraisers’ return of the homestead registered in the office of the register of deeds of the county in which the homestead is situated in order to make the judgment lien valid and binding on the homestead, until the exemption from sale of the land so allotted as a homestead shall determine. It would seem clear, upon another principle declared by this Court in Spoon v. Reid, 78 N. C., 244; Whitehead v. Spivey, 103 N. C., 66, and Oates v. Munday, 127 N. C., 439, that it would not now be open, after an acquiescence of more than thirty years in the allotment of the homestead, as made, by both creditor and debtor, for the debtor or his personal representative or heir-at-law to dispute the fact of the allotment. “The homestead, as a matter of fact, was laid off by well-defined lines, whether regularly or irregularly, and no objection was made to it by exception or appeal. The debtor accepted the assignment and has enjoyed the benefit thereof for more than twenty years, and the creditors have submitted to it for the same time. Both parties are estopped from denying an accomplished fact, so long recognized by them.” It has also been held by this Court that a sale under execution, though the judgment is not docketed in the county in which the land lies, is.not necessarily invalid. In Lytle v. Lytle, 94 N. C., 683, Chief Justice Smith, in speaking for the Court, said: “The docketing of a judgment is not an essential condition of its efficacy, nor a precedent requisite to an enforcement by final process. It is only necessary to create and prolong the lien thus acquired, for the benefit of the creditor against subsequent liens, encumbrances and conveyances of the same property.” In Holman v. Miller, 103 N. C., 118, it is said: “Under the present system, no lien is acquired upon land in the absence of an execution and levy, until the judgment has been docketed.” To the same effect is Bernhardt v. Brown, 122 N. C., 587; Evans v. Alridge, 133 N. C., 378, where the cases are cited. But these decisions are not authority to sustain such acts since the Laws *526 1905, ch. 412, which act provided that: “No execution shall issue from the Superior Court upon any judgment until such judgment shall be docketed in the county to which the execution shall be issued.” See Revisal, sec. 622. The validity of the proceedings we are now considering must, however, be determined by the law as it was held at that time — to-wit: prior to the Act 1905, in 1817. In our opinion, it must, therefore, follow that if a valid sale of land could be had under an execution and levy, issued on a judgment obtained in the county in which the land is located, then the homestead of the judgment debtor could be properly laid off, and after acquiescing in such allotment, the judgment debtor and his heir-at-law and personal representative cannot dispute its validity. We find no errors in these rulings of the referee and his Honor. We think that both the referee and his Honor erred in not receiving the evidence offered as to the value of the timber cut and removed from the land by the purchaser, Cox, and the rents and profits received by him, if any. One of the main equities asserted by the plaintiffs — and the theory upon which the plaintiffs proceeded- — was the rescission of the contract of sale, the cancellation of the deed and note given for the balance of the purchase money, and the subrogation of Cox, the purchaser, to the rights of the bank to the extent of $3,900, paid by him out of the purchase money in discharge pro tanto of its lien on this land; and the referee concluded that the plaintiffs were entitled to have the contract rescinded, and this finding was approved by his Honor. Conceding that the title conveyed by the defendant; as administrator of N. A. Boyden and by her as his heir-at-law, was defective and subject to be avoided at the suit of creditors of N. A. Boyden, because made within two years from the grant of letters of administration upon his estate under sec. 70, Revisal, the purchaser, Cox, entered upon the land described in the deed and under the deed, and cut large quantities of timber therefrom to the value, as offered to be shown, of more than $2,000. It appears that this land was valuable for its timber. It would be inequitable to decree a cancellation of the obligation of Cox and rescind the contract as to the burden imposed by it upon him, and not require him to account for the benefits re *527 ceived by him. “He who seeks equity must do equity.” The principal relief to be effected by cancellation or rescission is to place the parties in the same condition as if there had been no change of their condition by the attempted contract — to put them in statu quo. This is universally recognized. Reed v. Exum., 84 N. C., 430; Wood v. Wheeler, 106 N. C., 512; Odom v. Riddick, 104 N. C., 515; Sprinkle v. Wellborn, 140 N. C., 163 (these last two cases of cancellation on the ground of mental incapacity); Neblett v. MacFarland, 92 U. S., 101; Barbour v. Morris, 45 Ky., 120; New Castle Northern R. R. v. Simpson, 23 Fed., 214; Goodrich v. Lathrop, 28 Am. St. Rep., 91; Gatling v. Newell, 9 Ind., 572; Worthington v. Collins, 39 W. Va., 406; Adams v. Kibler, 7 S. C., 47; Edmunds v. Myers, 16 Ill., 207; R. R. v. Steinfleld, 42 Ohio St., 449; 6 Cyc., 306. The value of the timber, cut by plaintiff’s intestate, as well as whatever else of value he received, or whatever the possession under the deed was worth to him, should be accounted for by him, as the judgment allows him to be subrogated to the rights of the mortgage creditor, as of the date of the payment by him of the $3,900, with interest from that date, and directs the surrender' and cancellation of his note. As he is allowed interest, he should be charged with interest. In our opinion, the ruling of the referee in rejecting the evidence offered was erroneous. It is suggested that this ruling was based upon the fact that there was no such allegation in the answer; but as we have seen, the equity of rescission and cancellation, invoked by the plaintiffs, essentially involves the liability of the plaintiffs to restore as far as possible the status quoj and as the Court has administered equity for the plaintiffs, it should have compelled them to do equity to the defendant. In our opinion, there should be no order of sale until all the debts are ascertained and their respective priorities and liens determined, and the balance struck between plaintiffs and defendant, unless the property is deteriorating in value. The cause must be re-referred to the referee, in accordance with this opinion, and the order of sale vacated until his report is made and passed upon. Error.