The defendant's exceptions to the homestead allotment (167) are somewhat calculated to confuse. He avers:
(1) That the appraisers did not value the homestead, with its dwellings and buildings, selected by him; that they gave him no opportunity to make the selection; that he had no notice of their appointment or time and place of meeting; and that they did not select a parcel or tract of land including his dwelling house, but allotted to him a tract which he had conveyed to L. A. McGowan years ago and in which he had no interest; that it is not in his possession, and that exclusive of improvements put on it by the purchaser, it is not worth $1,000, but he says further —
(2) That while he disclaims ownership of the lands conveyed by him to L. A. McGowan, which he avers was done bona fide and for value, he is informed that the plaintiff will levy upon and sell said lands as the defendant's property, and he demands that his homestead be laid off therein; and he says also that he owns no land whatever.
The plaintiff agreed that the exceptions of the defendant should be read as evidence. There was no evidence in reply and the allegations of fact are to be taken as true. It is not very clear, but it is a reasonable inference that the lands conveyed by the defendant to L. A. McGowan are more extensive than the tract which is allotted to him as a homestead. It is strange that a debtor should insist upon an allotment of a homestead in lands which he says do not belong to him, but the Constitution, Art. X, sec. 2, gives him the right to make the selection, and the (168) Code, section 503, provides that the appraisers shall lay off "such portion as he may select." As it appears that this was not done, and that the petitioner was given no opportunity to select, it was error to dismiss the exceptions. They should have been sustained and the matter remanded to the appraisers that they might give the defendant such opportunity. The plaintiff relied on (1) That the exceptions did not comply with chapter 347, Laws 1885, in that they failed to specify the property in which the re-allotment should be made. This would be true if the allotment had been regularly made, but the defendant's exception is that no legal allotment had been made because he was not given opportunity to be present and make his selection. (2) That the defendant having disclaimed owning any land at all he is estopped to object to the action of the appraisers. On the contrary, which he avers that he has conveyed away the lands bono fide, he demands that he be laid off a homestead therein and that he have his right allowed to select its location. *Page 104
While it looks strange that the defendant should seek a homestead in property which he says is not his, he seems mindful of the fact that a jury may differ with him as to the bona fides of his conveyance, and he is taking no risks. Whitehead v. Spivey, 103 N.C. 66. On the other hand, if, as he says, the plaintiff will seek to set aside the conveyance as fraudulent and subject the land to her judgment as the property of the defendant, it does not lie in the plaintiff's mouth to object to the defendant having his homestead legally laid off therein. If it (169) should prove to be the defendant's property, he would be entitled to have his homestead therein (Crummen v. Bennett, 68 N.C. 494), and would be estopped (Marshburn v. Lashlie, post, 237; Whiteheadv. Spivey, supra), by a homestead laid off therein. There should be opportunity, therefore, given him to select it.
Error.
Cited: McKeithen v. Blue, 142 N.C. 363.