McKeithan v. . Terry

64 N.C. 25

• Court: Supreme Court of North Carolina
• Decided: January 5, 1870
• Status: Published

Opinion

Beade, J.

The State Constitution provides for the exemption of a Homestead worth $1000, and of personal property worth $500, from execution sale for debt. We have decided that this exemption applies to debts existing before the adoption of the Constitution. Hill v. Kessler, 63 N. C. Rep. 437.

But in the case under consideration the execution was levied before the adoption of the Constitution: there was, therefore, a specific lien, a vested right, which it was not the purpose of the Constitution to destroy, if indeed it had the power. Mere indebtedness is not a lien upon any property, nor does the homestead destroy the creditor’s -property in the claim, and therefore does not necessarily impair the ob-' ligation of the contract. But it is otherwise where the creditor has acquired a specific lien, as in the case under consideration. It was the duty of the Sheriff, under the ven. ex. in his hands, to sell the land which had been levied on, and return the money into Court; and his return of “no goods and chattels, &c., over the homestead” was not a “due return,” and he was therefore hable to amercement.

It was error in His Honor to refuse the rule moved for by the plaintiff.

This will be certified.

Per Curiam. Judgment reversed.