Gulley v. . Thurston

BuRWiorm, J.: The question presented to us by this appeal is not what distribution of a fund arising solely from a sale of the homestead land shall be made to a “ homesteader,” a judgment creditor, having a lien on the land allotted — the enforcement of which is by law postponed till the termination of the homestead rights — and a mort- *195 gagcc, wliose mortgage was registered after the docketing of the judgment. That was the matter brought to the attention of this Court in the case of Leak v. Gay, 107 N. C., 468-483, and the somewhat difficult problem of adjusting the rights of the claimants to the fund then in Court was further complicated by the fact that the homestead land, sold, as it had been, so as to pass a good title thereto, had brought'much more than one thousand dollars, the limit established by the Constitution, and that all parties seem to have agreed that the homesteader should have the present value of his homestead right absolutely in lieu of land or money to be used while his homestead rights continued, and when those rights ended to be applied to the liens thereon according to their priorities. The question which is presented by this appeal is, Which has a superior lien on land of the debtor outside of his allotted homestead, his judgment creditor whose judgment has been duly docketed, or his mortgagee whose mortgage was executed and registered after the docketing of the judgment ? A bare statement that under the law (The Code, §435) the docketing of a judgment creates a lien on all the land of the debtor in the county where docketed from the date of the docketing, and that a mortgage is a lien only from the registration, would seem to be a sufficient answer to this question. It cannot be that the act of a debtor and a third party can impair or destroy the rights of the judgment creditor as to the excess over the homestead. ' Wo will not feel called upon to discuss the case of Leak v. Gay, supra, as it was insisted by the counsel of the parties to this appeal that we should do, until we have again before us a controversy like that, over a fund arising from a sale of an allotted homestead.- It should be borne in mind, however, that expressions in the opinion filed in that case as to the right of a judgment creditor and a *196 junior mortgagee are to be read and considered in the light of the facts of the case then to be determined. The judgment of the Court should have directed the Sheriff to sell the excess over the homestead and apply the proceeds on the execution in his hands in favor of the plaintiff. . ' Error.