The plaintiff claimed title to the land described in the complaint, by virtue of an execution sale and sheriff's deed made pursuant thereto.
The defendant denied that the plaintiff was the owner of the land, or that he wrongfully withheld possession thereof. He admitted being in the possession.
The following issues were, without objection, submitted to the jury:
1. Is the plaintiff the owner, and entitled to the immediate possession of the land described in the complaint?
2. Did the defendant, at the time of bringing this action, unlawfully withhold possession thereof?
3. What damages is the plaintiff entitled to recover?
The plaintiff put in evidence a deed from Z. F. Long, sheriff, to himself, for the land in controversy, dated 26 August, 1882, which purported to convey the land in dispute; also one hundred and sixty acres in addition, made up of one tract of one hundred acres, one of fifty acres, and one of ten acres. The plaintiff also showed in evidence a judgment rendered at Spring Term, 1870, of the Superior Court of Richmond County, in favor of the executors of Stephen Pankey v. Thomas Watson, Peter Hanner and John G. Watson, for thirty-five *Page 278 dollars, with interest on the same from 13 November, 1864, and the costs, docketed 17 May, 1870. Executions were regularly issued thereon until 4 October, 1873. On 20 October, 1873, the judgment was transferred to Z. B. Moore. On 2 April, 1879, leave was given the plaintiff in said judgment to issue execution, and on 5 April, 1879, an execution was duly issued thereon, which was duly levied upon the land in controversy, and the sheriff proceeded, on 9 January, 1879, to sell, when the same was purchased by Z. B. Moore for the sum of forty (334) dollars. On the same day he transferred his bid and judgment to the plaintiff. The plaintiff showed in evidence the note upon which the same was founded, executed by Thomas Watson, Peter Hanner and the defendant, John G. Watson, dated 13 November, 1863, and due twelve months after date. The plaintiff also showed in evidence a judgment in favor of Frank Sanford v. John G. Watson, dated June, 1876, for $15.85, with interest from 6 May, 1860, upon which execution issued 6 January, 1879. No homestead was ever allotted to the defendant.
The plaintiff, for the purpose of showing that the lands of the defendant were, in January, 1879, worth less than $1,000, and the amount of the judgment, after objection by defendant and exception to its admission, introduced W. I. Everett, who testified that he knew the land formerly owned by John G. Watson, Sr., but did not know the dividing lines. He knew where the dwelling was, also the twenty-five acres; that in June, 1879, in his opinion, from three ($3) to four ($4) dollars per acre was a fair valuation. He could not say as to the eighteen acres. The whole tract contained two hundred and twenty-seven (227) acres. In respect to the one hundred acres, he only knew its value by comparison with other similar tracts in the neighborhood; had not been on it; could not say how long before 1879 he last saw the lands.
The plaintiff proposed to ask the witness the value of the one hundred acres. Objected to by the defendant, because the witness states that he cannot give the value of the land except by comparison with other tracts in the neighborhood. Objection sustained; plaintiff excepted.
There was much other testimony as to the value of the lands.
The counsel for the plaintiff requested the court to charge the jury:
1. That there was no evidence that the defendant was worth, (335) in June, 1879, one thousand dollars and the judgment, interest and costs, amounting to eighty-three dollars.
2. That upon the whole evidence the plaintiff was entitled to recover.
The court declined to so instruct the jury, and the plaintiff excepted. The court then instructed the jury that they could consider the whole *Page 279 evidence, and, after ascertaining the value of the land, per acre, in June, 1879, they should make a calculation as to its total value.
The court then explained to the jury the issues, and the way in which the testimony should be considered with respect to them, and instructed them that they could consider the return on the execution, in passing upon the question whether the defendant had other property than the land covered by the sheriff; and that to recover in this action the plaintiff must show, by a preponderance of the testimony, that the defendant's land was worth, in June, 1879, less than one thousand dollars and the amount of the judgment, interest and costs, amounting to $83, and that the defendant had no other property which could have been sold to pay the judgment.
The jury found the first and second issues in the negative.
Motion for a new trial, for reception of the evidence objected to, and for refusing the instruction asked, and for error in the instructions given.
Motion denied. Judgment in accordance with the verdict. Appeal by plaintiff. No homestead was allotted to the defendant in the course of these proceedings, and to the present action he opposes the defense that, without an allotment of his exemption, notwithstanding the debts antedated the Constitution, in order that the (336) debts might be satisfied from the excess, if sufficient remained to discharge it, out of the land in exoneration of the homestead, the sale was illegal and the deed did not divest the title.
This construction finds support in the ruling of the court, though not unanimous, upon the point in the elaborately argued and carefully considered case of McCanless v. Flinchum, 98 N.C. 358.
While it is conceded that under the Constitution of the United States, as construed and applied to the exemption enactment, a debt previously created, and before the State Constitution was adopted, must be paid out of the debtor's estate, and the exemption must give way when it cannot be otherwise satisfied out of the debtor's property (Edwards v. Kearzey,96 U.S. 595), yet the debtor possesses still the right to retain, exempt from sale, even at the instance of such a creditor, whatever excess there may be in his hands after the disposition of so much as may be needed to discharge the debt, and to have the inquiry made in the mode prescribed by law to have the fact ascertained previous to the sale. Should the sale of the part estimated to be sufficient turn out no *Page 280 to be insufficient, the creditor may then have recourse also to the part assigned as exempt. The Code, sec. 502, et seq. The debt must be paid at all events, but the method of proceeding, in appropriating the property liable, is a matter of legislative regulation.
Were it an open question, it might admit of doubt, whether this must not be done in all cases by the assessors, as the statute provides, to render valid the enforcement of the process in the sheriff's hands, and before he undertakes to sell the real estate, instead of instituting such an inquiry before the jury, in an action to establish title and recover possession of premises thus sold. But it has been held that when the real estate is manifestly deficient, and it shall so appear (337) afterwards, such sale will be upheld upon the ground that no harm has come or could come to the debtor by reason of an omission to have a proceeding to ascertain if any homestead could be secured, and therefore it would have been useless and without detriment to the debtor. It is thus held in Miller v. Miller, 89 N.C. 402; Arnold v.Estis, 92 N.C. 162; Lowdermilk v. Corpening, ibid., 333; and other cases to same import.
In Littlejohn v. Egerton, 76 N.C. 468, the homestead had been set apart, but ineffectually, because not assigned by metes and bounds as prescribed by the statute, and the defendant, claiming under the sheriff's deed a full estate in the land, had come into possession, and refused to admit the exemption. The court, recognizing the right of homestead, but unable to restore possession to the plaintiff, suspended further action in the case until the plaintiffs could, in the regular way, have their exemption ascertained and set apart, giving them leave, on filing a certified copy of the allotment, to move for a writ of possession. The interruption in the progress of the cause grew out of the want of power in the court to have this done under its direction, and the necessity of pursuing the statutory requirements to secure the full benefits of the constitutional provision.
So, if the parties in this case occupied to each other similar instead of reversed relations it would be safe to pursue the same course, and thus enable the debtor to regain his lost possession in furtherance of his legal right to retain possession until the sheriff, after causing his homestead to be ascertained and its boundaries fixed, should make sale under his execution. Such is not the case before the court, but the plaintiff seeks to dispossess the defendant, by virtue of the deed of the sheriff, who sold, as the record shows, a large body of land to satisfy an inconsiderable debt, disallowing any right of homestead or any (338) proceeding to find out whether the value of the land was not sufficient both to satisfy the debt and leave some portion to the debtor. *Page 281
It has been repeatedly declared, and after an elaborate and exhaustive examination of the subject in separate opinions settled by a majority of the members of the Court in McCanless v. Flinchum, already cited, that, without regard to the time or origin of the debt, the provisions of the statute for laying off the homestead must be observed, because the debtor has a right to the exemption if the debt can, with costs, be satisfied out of other lands, and to this end the assessors should allot, within the prescribed limits, so much as in their judgment is not needed to pay the judgment, subject, however, to the creditor's right to have the exempted part sold also, if the other, on such sale, proves insufficient and the debtor fails, in any way, to provide for the unpaid residue.
In the case referred to, Merrimon, J., uses this language: "The court ought to have instructed the jury to inquire particularly whether or not the land in question was worth more than the debt of the execution creditor and the costs, including the costs of laying off the homestead of the execution debtor, and if they found that it was, then the plaintiff couldnot recover, because it appeared that the homestead had not been laid off as the law required, and in that case the Sheriff had no sufficientauthority to sell the land, and therefore his deed to the plaintiff was void."
Many witnesses were examined in reference to the value of the lands at the time of the execution sale, to the reception of whose evidence, offered by the plaintiff, the defendant objected. To this exception to the course taken by the court, we have only to say that it has the sanction of the case from an opinion of which we have already quoted a part.
The force of the objection to the witness Everett, first examined, being allowed to put in an estimate upon the land, based upon the value of other tracts in the neighborhood, is not apparent, for we do not see how otherwise, unless upon an actual sale of the lands (339) themselves, any reliable estimate could be arrived at. This must, of course, rest on the valuation given other similar lands, irrespective the effect of improvements.
The references to Warren v. Makely, 85 N.C. 12; Bruner v. Threadgill,88 N.C. 361, do not sustain the exception. In the first, an inquiry as to the price brought upon a sale of an adjoining tract some twelve months before, simply made in this form, and with no intimation of further evidence of the similarity of their condition, or of any particulars that enter into an estimate of value, was ruled out.
Similar proof was offered in the other case of the value of a town lot opposite to that whose value was the subject of inquiry, and was *Page 282 rejected as incompetent. Neither goes so far as to deny to a witness the expression of an opinion of the value of certain lands founded upon the general value of other lands near thereto, for this is usually a safe, if not the only guide to the formation of a reliable opinion as to the value of that in controversy.
The issues submitted to the jury are the first three of those passed on at a former trial, omitting the fourth, and which will be found in the case as reported in 95 N.C. 479, which was suggested in the opinion then delivered.
The instructions demanded and declined proceeded upon a misapprehension of the point of inquiry, which is not whether a full homestead of $1,000 could be taken from the land and then enough left to satisfy the judgment, interest and costs, amounting to $83, but how much would remain for the use of the debtor after the discharge of the execution, for if he could not get the full measure of the exemption, the debtor would still be entitled to what was not required after providing for such payment. So, the issue was not what is implied in the instruction requested, but would the debtor have any land left after satisfying the debt, and if so, it should have been ascertained and assigned, the neglect to have which done before the sale renders (340) the same void, and hence the plaintiff is not the owner. Such is the response of the jury to the question of the plaintiff's title and right to recover possession.
The refusal to give the second instruction was also proper, for there was evidence to warrant the negative answer returned by the jury.
The charge given is obnoxious to no just complaint of the plaintiff, for it requires him to show that the lands were worth less than $1,000, the maximum allowed for the homestead increased by the debt, interest and costs. It is based upon the erroneous idea that the debtor is only entitled to the exemption when he can get the full measure of the allowable value, while he is entitled to a fractional part of less value, if there be such excess over the demands of the writ, as truly as he would be to the large quantity, if it were sufficient to give him more without interference with the collection of what sum the demand requires. This, however, was favorable to the plaintiff and injurious only to the defendant. It is equally imperative that the debtor have exempt the excess, whatever it might be, and a part as well as the whole.
There being no suggestions of the defendant's owning other lands, we understand that there were none other than those mentioned in the case.
The exceptions to the charge is general, pointing out no specific errors committed, and could not be, for this reason, noticed in the *Page 283 appeal. We refer to this case as reported in 95 N.C. 479, and to Millerv. Miller, 89 N.C. 402, in further elucidation.
There is no error, and the judgment is
Affirmed.