Virginia-Carolina Chemical Corp. v. Stuart

ClabicsoN, J.

The only question involved on this appeal: In enforcing a judgment lien should prior recorded mortgages and other encumbrances be taken into consideration in arriving at the value of a home*493stead, or should the homestead be allotted subject to and burdened with prior encumbrances as though they did not exist? We think the homestead should be allotted subject to and burdened with prior encumbrances as though they did not exist. This has been long the practice and procedure in this jurisdiction.

In Cheatham, v. Jones, 68 N. C., 153, the headnote is as follows: “A debtor is entitled to a homestead in an equity of redemption, subject to the mortgage debts.”

Pearson, C. J., at p. 155, speaking to the subject: “The question presented by the case is this: Has a mortgagor in possession a right to a homestead, as against all other creditors, save the creditors secured by the mortgage ? We concur in the opinion of his Honor, that the homestead is exempt from sale under execution, and that the mortgagor, although he holds subject to the mortgage debt, holds his homestead paramount to the other creditors. A mortgage is a mere encumbrance upon a man’s land, given as a security for the debts therein set out; and if he can discharge the encumbrance by the sale of the lands outside of his homestead, or in any other way, creditors who are not secured by the mortgage, have no ground upon which to deprive him of the homestead secured by the Constitution. We are of opinion that a debtor is entitled to a homestead in an ‘equity of redemption/ subject to the mortgage debts, just as a purchaser in possession is entitled to a homestead, subject to the payment of the purchase money.” Cheek v. Walden, 195 N. C., 752; Farris v. Hendricks, 196 N. C., 439.

'In McIntosh N. C. Practice and Procedure, part sec. 764, at p. 885, we find: “The debtor may also have a homestead in an equitable interest in land. When the land is subject to mortgage, the legal title is in the mortgagee, as between him and the mortgagor, but as to others the mortgagor is considered the owner, and he may have a homestead in the equity of redemption. (Citing the Cheatham case, supra). It is taken, however, subject to the mortgage lien, and it is obtained by allotting from all the land a part to the value of $1,000, and requiring the part outside of the homestead to be applied first to the lien before resorting to the homestead, instead of attempting to lay off enough land to make the equity of redemption worth $1,000,” citing Burton v. Spiers, 87 N. C., 87.

Under the above authorities we think the judgment of the court below should be

Reversed.