Board of Commissioners of Montgomery County v. Riley.

75 N.C. 144

• Court: Supreme Court of North Carolina
• Decided: June 5, 1876
• Status: Published

Opinion

Settle, J.

The incident, though sometimes more important in results, generally follows the principal.

The process by attachment, is a mode of enforcing the collection of a debt ancillary to a suit, regularly instituted in the C; urts, and followed by a judgment and execution thereon.

Can a party, who proceeds by attachment, place himself in a better position than one who sues regularly in the Courts and obtains a judgment, and sues out execution thereon ?

We need not seek beyond the last number of our Reports to find the dignity of the personal property and the homestead exemptions under our Constitution.

In Curlee v. Thomas, 74 N. C. Rep., 51, the ruling in Duval v. Robbins, 71 N. C. Rep., 218, is quoted with approbation ;

The personal property exemption cannot be reached by ■execution at all, for as to that, under the Constitution, there ■ can be no creditor and no forfeiture, even by an attempt to ¡make a fraudulent conveyance. It is confirmed by the Con.--stitution, and is inviolable.'’

In Crummen v. Kennett, 68 N. C. Rep., 494, it is held that ;a grantor, who makes a conveyance of his land, which is ¡fraudulent as to his creditors, does not thereby forfeit his ¡right to a homestead as to such creditors. They can sell, ¡under an execution, only the remaining part of his land, ¡leaving the homestead to be con tested between the alleged ■ fraudulent grantor and grantee.

And this is further supported by the ruling in Lambert v. McKinney, 72 N. C. Rep., 348, where it is held that the title ¡to the homestead is vested in the owner, by the Constitution of this State, and no allotment by the sheriff is necessary to vest ,the title thereto. The allotment by the Sheriff is only for the ■ purpose of ascertaining whether there be an excess of property over the homestead, which is subject to execution.

And this Court has gone so far as to hold that the maker ■of a note, having at the time a .wife and children, cannot, by stipulation to that effect, in the note, waive the benefit of the homestead exemption, as to the debt evidenced by the note, for that the owner of the homestead can part with it only by the formalities prescribed by law,to-wit; by deed, with the consent of the wife, evidenced by her privy examination.

In Grubbs v. Ellyson, 23 Arkansas, 287, it is said: “ An attachment is but a preliminary execution, so that a homestead is not subject to attachment any more than it is to an execution.”

The personal property and homestead exemptions are fixed by the Constitution, and are not subject to legislation.

The Legislature can only facilitate or impede the remedies by which the Constitutional rights may be enforced, but the rights themselves are beyond the province of the Legislature.

This Court, from Hill v. Kesler, 63 N. C. Rep., 437, to this instance, has given a fair and reasonable construction to these beneficient provisions of the Constitution, and will adhere to its decisions unless they are reversed, in a proper case, by the Supreme Court of the United States.

The judgment of the Superior Court is reversed.

Let this be certified, &c.

Per Curiam. Judgment reversed.