Ray v. . Thornton

95 N.C. 571

• Court: Supreme Court of North Carolina
• Decided: October 5, 1886
• Status: Published

Opinion

Ashe, J.,

(after stating the facts). The objection made by defendant that the homestead was not laid off by metes and bounds, we do not think is sustainable. The act does require that the homestead shall be laid off by metes and bounds, but metes and bounds do not mean that it shall be laid off by course and distance. The metes and bounds of a tract of land may be designated by the course of a stream, the line of another tract, by a wall, and even by a fence, and if the fence should be moved it would be competent to prove where it had stood. We think the boundaries of the homestead stated in this return, sufficiently come up to the requirements of the statute, for there can be no doubt as to the boundary of the homestead. It is described as the dwelling-house on the north of Laman street, in Fayetteville, and running a straight line with the yard fence separating the house yard from the garden, and extending the line of the fence northward in a straight line as it now runs, say northward to James Tucker’s line, exempting all of said lot that lies on the northern side of the above described line. This defines the boundary with as much definiteness as if it had been described by course and distance.

His Honor very properly held that in this proceeding, the mortgagees not being parties, no adjudication upon their relative rights with those of the execution creditors could be of any binding force. Any such adjudication as that insisted upon by the defendant, would have been extrajudicial. It is a postponed question to be decided between the mortgagees and those creditors.

As to the objection that the defendant was not allowed by the appraisers to make his selection, we do not find in the record, nor in the statement of the case, any mention of such a claim having been set up the defendant. It only appears in the objection filed by the counsel with the clerk, and can only be regarded as the suggestion of counsel and cannot be entertained.

The objection, that the value of the buildings upon the land were taken into consideration by the appraisers in estimating the value of the homestead, cannot be sustained. The defendant’s counsel contended that the defendant was entitled to a homestead in land of the value of one thousand dollars, and the dwelling and buildings used therewith belong and are incident to the homestead in land, and are not to have additional value in the valuation of the homestead, .and that as the land upon which the “ dwelling and buildings used therewith,” were erected, is worth only six hundred dollars, there was no excess upon which a levy could be made.

The contention of the defendant’s counsel, is founded upon a misconception of the Constitution and the act of the legis lature. It seems as plain to us as language can make it, tliat tlie value of tlie buildings on tlie laud is to be taken into account iu estimating tlie value of the homestead. The ('(institution, Art. X. §2, reads: “ Every homestead, and the dwellings and buildings used therewith, not exceeding in value one thousand dollars,” &e. There is no ambiguity in this language; it leaves no room for doubt that it means in ascertaining the homestead, which is not to exceed one thousand dollars, the value of the dwellings and buildings is to be taken into the estimate with that of the land upon which they are situated. The language of The Code, §508, is not less unambiguous. It provides that “the appraisers shall thereupon proceed to value the homestead with its dwellings and buildings thereon, and lay off,” &c. This evidently means that the land and buildings there shall be valued together in making up the estimate of a thousand dollars.

The construction contended for by the defendant, would open the door to the grossest injustice and dishonesty. If such a doctrine should be established by the decision of this Court, then a debtor owing thousands of dollars, and owning a small piece of land not worth more than one hundred dollars, might invest his whole estate in the erection of an edifice thereon — a hotel, for instance, at the cost of ton thousand dollars — and then bid his creditors defiance. It is impossible to believe that the framers of the Constitution ever contemplated that the adoption of this beneficent provision should lead to consequences so unjust and absurd.

There is nothing in the remaining objection to the report, that the appraisers failed to make or return a descriptive list of the personal property and assess the value of the articles exempted as required by law. Th e 1 ist, we think, is sufficiently descriptive. It sets out all the household and kitchen furniture, all the bedding, all the table ware, all the garden utensils, all the silver ware, estimated in the aggregate and assessed to be worth $315. The other articles are specifically enumerated and the value attached to each.

The homestead might have been allotted with more convenience to the defendant in respect to the out-buildings on the lot, but wo do not think that that is sufficient ground for setting aside the report of the appraisers.

Our conclusion is, there was no error, and the judgment of the Superior Court is affirmed.

No error. Affirmed.