Lambert v. . Kinnery

74 N.C. 348

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

Opinion

ByNüm, J.

1. We had supposed that it was well settled, in this State, that the homestead of a resident was exempted •from sale under execution, and that only the excess after laying •nff the homestead, was the subject of such sale. Const., Art. X, sec. 2 ; and that it was the duty of the officer having the execution, first, to lay it off, and then levy upon the excess, if any. This allotment of a homestead by the sheriff, was not ■'required in order to vest the title to it in the owner, for that is -done by the Constitution, but for the purpose of ascertaining if there was any excess, which only was the subject of levy 'and sale. Bat. Rev., chap. 55, secs. 1, 5, 17, 26; Abbott v. Cu martie, 12 N. C. Rep., 222; Lute v. Reilly, 65 N. C. Rep., 20; Crummen v. Bennett, 68 N. C. Rep., 494; Duval v. Rollins, 71 N. C. Rep., 248.

2. As to waiver and estoppel: The defendant, having a vested estate in the homestead, conferred by the Constitution, -can lose or part with it only in the mode prescribed by law, to-wit: by deed, with tbe consent of tbe wife, evidenced by "her privy examination. Const., Art. X, sec. 8.

His Honor, therefore, was correct, both in overriding tbe demurrer and in bis charge to tbe jury on tbe trial.

3. Costs: Tbe defendant, by tbe order of tbe proper court, was allowed to defend without giving security for costs. This does not exempt him from paying bis own costs, nor prevent him from recovering them from the plaintiff on tbe prosecution bond. His only privilege is, that being unable to give a bond for costs and damages, be is allowed to defend the action without filing tbe bond. Bat. Rev., chap. 17, sec. 382.

There is no error.

Per Curiam. Judgment affirmed.