Curlee v. . Thomas

74 N.C. 51

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

Opinion

Byuum, J.

The personal property of any resident of this State, to the value of five hundred dollars, to be selected by such resident, shall be and is hereby exempted from sale under execution or other final process of any court; issued for the collection of any debt.” Const. Art. X, sec. 1.

We cannot go behind the judgments to examine the merits of the consideration upon which they are founded. If the plaintiff had issued an execution against the defendant upon his judgment, it is clear that she would have been entitled to her personal property exemption against it. Her judgment against the plaintiff was personal property, and if it was required to make up the amount to which she was entitled under the Constitution, it would have been the duty of the officer having the execution, to allot it to her. Bat. Rev. chap. 55, sec. 12. The plaintiff can be in no better situation and the defendant is no worse, by this short-hand way of getting the benefits of an execution without its burdens.

To give effect to such motions as this, would be in many cases, to deny this benign provision of the Constitution. “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 fraud-lent conveyance. It is confirmed by the Constitution and is inviolable.” Duval v. Rollins, 71 N. C. Rep. 218. Crummen v. Bennett, 68 N. C. Rep. 494. Lambert v. Kinnery decided at this term.

If an execution could not reach the defendant, how can the present proceeding, which is only a substitute for an execution.’ In the sense of Art. X, sec. 1, it is “ final process.”

There is error.

Per Cueiam. Judgment reversed, and judgment here for 4he defendant.