LEAK v. GAY

Full title: JAMES A. LEAK ET AL. v. JOHN C. GAY ET AL

Court: Supreme Court of North Carolina

Date published: Sep 1, 1890

12 S.E. 315 (N.C. 1890)

107 N.C. 482

Opinion

September Term, 1890.

Homestead — Present Value — Judgment Creditors — Exoneration — Constitution.

1. The restoration of the lien of a judgment, under the act of 1885, does not affect the judgment debtor's right to exoneration, or his power to encumber his homestead by a conveyance executed in compliance with section 8, Article X, of the Constitution.

2. Judgment creditors cannot complain of the homesteader's election to take the present value of his homestead.

APPEAL OF JUDGMENT CREDITORS.

The facts are the same as in the other case, except the exceptions of the judgment creditors set out in the opinion.

Little Parsons (by brief) for plaintiffs.

C. W. Tillett and P. D. Walker for Spencer.

J. D. Shaw for Lowdermilk.

AVERY, J.

This is an appeal by two of the judgment creditors, J. S. Spencer Co. and B. F. H. C. Lowdermilk —

1. Because of the payment of the second mortgage out of the funds, proceeds of the sale of land, before their judgments, said judgments having been docketed before the registration of said mortgage.

2. Because the $390.34, the present value of defendant's homestead, should have been applied to payment of the second mortgage, and the balance of the proceeds of the sale, after deducting the first mortgage and cost of suit, to the satisfaction of the judgments docketed prior to the registration of the second mortgage, according to their respective priorities — the dates of docketing.

We need only to add to what has been said in the discussion of (483) the defendants' appeal that, though the act of 1876-77, as amended by the act of 1885, has been construed for the purpose of disposing of the excess over the homestead, as if the clause destroying the lien had never been inserted, the restoration of the lien, under the act of 1885, construed with section 3766 of The Code, does not affect the defendant's right to exoneration, nor his power to encumber his homestead by a conveyance executed in compliance with section 8, Article 10 of the Constitution. The appellants cannot complain of the election of defendant Gay, whereby they receive what is, in contemplation of law, the present value of what they would receive after the right of exemption, according to the calculation as to the probabilities of life, shall cease. There is no error, and the judgment is

Affirmed.

Cited: Bevan v. Ellis, 121 N.C. 235.