New Amsterdam Casualty Co. v. Dunn

184 S.E. 488, 209 N.C. 736, 1936 N.C. LEXIS 334

• Court: Supreme Court of North Carolina
• Decided: March 18, 1936
• Status: Published

Opinion

Devin, J.

The only question presented here is whether the judgment decreeing a sale of the debtor’s land may be modified so as to permit the allotment of a homestead therein.

The Constitution of North Carolina (Art. X, sec. 2) provides that “Every homestead . . . owned and occupied by any resident of this State and not exceeding the value of one thousand dollars, shall be exempt from sale under execution or other final process obtained on any debt,” and this homestead “to be selected by the owner thereof.”

The right to the homestead exemption is guaranteed to every resident of North Carolina by the Constitution, and this right is not forfeited by a fraudulent conveyance. Grocery Co. v. Bails, 177 N. C., 298; Rose v. Bryan, 157 N. C., 173. Nor by a fraudulent assignment. Whitmore v. Hyatt, 175 N. C., 117.

The authorities cited by plaintiff (Cooper v. McKinnon, 122 N. C., 450, and Powell v. Lumber Co., 153 N. C., 59) construed sections 967, et seqof the Revisal of 1905, which were not brought forward in the Consolidated Statutes.

The allowance of defendant’s motion for the allotment of his homestead in the land described and the modification of the decree of sale protecting that constitutional right cannot be held for error.

Affirmed.