Leak v. . Gay

12 S.E. 315, 107 N.C. 482

• Court: Supreme Court of North Carolina
• Decided: September 5, 1890
• Status: Published

Opinion

Avery, J.:

This is an appeal by two of the judgment creditors, J. S. Spencer & Co. and B. F. & PI. 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 costs 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 the defendant’s 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, Art. 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.

Affirmed.