DOUGLAS, J., dissents. "Whereas judgment was rendered 10 November, 1894, in the Superior Court of Wake County, in an action between B. Liles, Wm. Watts et al., plaintiffs, and J. Rowan Rogers, John Upchurch, James Ennis, J. P. Sorrell, J. D. Pearce, Loftin Harrison, R. B. Ellis, and J. W. Pernell, defendants, in favor of S. Watts, A. B. Marshburn et al., against the defendant H. C. Lashlie for the sum of one hundred and eighty-two (238) dollars and twenty cents, as appears to us by the judgment roll filed in the office of the clerk of the Superior Court of said county:
And, whereas, the judgment docket in this county on 21 November, 1904, and the sum of one hundred and eighty-two dollars and ninety cents is due thereon, with interest on same from 1 October, 1891, and the further sum of seventy-six dollars and ten cents for costs and disbursements in said suit expended, whereof the said H. C. Lashlie is liable.
You are therefore commanded to satisfy the said judgment out of the personal property of the said defendant within your county; or, if sufficient personal property cannot be found, then out of the real property in your county belonging to such defendant, etc. *Page 145
The judgment was one rendered on the report of a referee in an action against a defaulting sheriff and his sureties, the amount of the judgment against H. C. Lashlie being for $182.20, and various amounts against the other defendants separately stated.
The appraisers summoned by the sheriff had allotted to the defendant H. C. Lashlie, as a homestead, a tract of land of 32 acres, valued at $40. No excess was reported. The sheriff, under the direction of the plaintiff, sold the land sued for, which had been conveyed by the defendant H. C. Lashlie to his son D. D. Lashlie, at which sale plaintiff bought. The tract so sold contained 109 acres.
It was in evidence that at the time of the issuance of the summons herein the defendant D. D. Lashlie was in the possession (239) of the land in controversy; H. C. Lashlie was living on it also.
In the argument on the issues counsel for defendant insisted that before the rendition of plaintiff's judgment, H. C. Lashlie, being largely indebted, conveyed the land to his son D. D. Lashlie, and contended that the issue was whether said conveyance was in fraud of creditors, the plaintiff being one of his said creditors.
Upon this evidence the court nonsuited the plaintiff, who excepted and appealed. The execution sufficiently conforms to the judgment. The variance is technical and immaterial. Rutherford v. Raborn, 32 N.C. 144; Green v.Cole, 35 N.C. 425; Hinton v. Roch, 95 N.C. 106; Wilson v. Taylor,98 N.C. 275; Code, secs. 448 and 1347.
A purchaser at a judicial or execution sale has a prima facie (240) title, and a defendant in an action of ejectment, who seeks to avoid such title on the ground of homestead rights, must specifically plead the facts upon which the homestead right depends (Allisonv. Snider, 118 N.C. 952; Fulton v. Roberts, 113 N.C. 421; Dickens v.Long, 109 N.C. 165; Edwards v. Taylor, supra) unless they are admitted or appear in the plaintiff's evidence. Mobley v. Griffin, 104 N.C. 112. Here the defense of the homestead is not set up in the answer. It appeared, however, in the evidence offered by the plaintiff that the homestead of the defendant H. C. Lashlie was allotted in another tract of land and that he did not except to such allotment. It is contended, however, for the defendants that if the conveyance of the tract of land in dispute by H. C. Lashlie to D. D. Lashlie is found by the jury to be fraudulent, H. C. Lashlie can still set up his claim to homestead therein. Crummenv. Bennett, 68 N.C. 494; Arnold v. Estis, 92 N.C. 162; Rankin v.Shaw, 94 N.C. 405; Dortch v. Benton, 98 N.C. 190. But those *Page 146 decisions apply only where no homestead was set apart, in which case, when the land is adjudged to be the property of the fraudulent grantor, he is entitled to his homestead therein. Crummen v. Bennet, supra, did not meet the hearty approbation of the profession when rendered, and though it is now too well settled to be shaken, the courts have never gone beyond it. Accordingly, a line of cases has equally as well settled the principle that where the homestead is allotted and no exception is filed thereto, if other land is adjudged to have belonged to the debtor at the time of the allotment and to have been conveyed by him in (241) fraud of creditors, there is an estoppel of record against such debtor which prevents him from claiming a homestead in the land, when the fraudulent conveyance is set aside in an action brought by the purchaser at execution sale. Whitehead v. Spivey, 103 N.C. 66;Spoon v. Reid, 78 N.C. 244; Burton v. Spiers, 87 N.C. 87, which are cited with approval in Springer v. Colwell, 116 N.C. 520. In the first two cases, as in the present one, the homestead allotted was less than $1,000. Whitehead v. Spivey, supra. Here the homestead allotted was 32 acres of land with dwelling and buildings thereon, but valued at only $40. Whether this was the true value or not, the homesteader had had his day in court, his homestead was allotted, and the return of the allotment filed and recorded, he did not claim it in the land now in controversy, he filed no exception, and the allotment is res judicata.
When the case goes back, and the defendant D. D. Lashlie shall set up his deed from H. C. Lashlie, it will be open to the plaintiff to attack it for fraud. Upon that issue the result of the action must depend, for H. C. Lashlie in any event is estopped to assert a homestead therein.
In no aspect of the case can the nonsuit be sustained, and it must be set aside.
Error.
DOUGLAS, J., dissents.
Cited: McGowan v. McGowan, ante, 169; Cawfield v. Owens, 130 N.C. 643.
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