Sample v. . Jackson

Supreme Court of North Carolina

Sample v. . Jackson

38 S.E.2d 155, 226 N.C. 408, 1946 N.C. LEXIS 448

DecidedMay 22, 1946

StatusPublished

This text of 38 S.E.2d 155 (Sample v. . Jackson) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sample v. . Jackson, 38 S.E.2d 155, 226 N.C. 408, 1946 N.C. LEXIS 448 (N.C. 1946).

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Opinion

Winborne, J.

As determinative of this appeal the appellant states this question: “Where a judgment debtor’s homestead has been allotted, can the judgment creditor have the homestead reallotted merely upon a *410 new execution or are tbe provisions of G. S., 1-373, mandatory and exclusive ?”

This question is predicated upon tbe assumption that in present case judgment creditor is restricted to a proceeding for reallotment of homestead. If sucb were tbe case, it is true that tbe creditor would be required to pursue bis remedy by an action in equity, as in Vanstory v. Thornton, 110 N. C., 10, 14 S. E., 637, or by application to tbe clerk of Superior Court under provisions of G. S., 1-373. See McCaskill v. McKinnon, 125 N. C., 179, 34 S. E., 273.

But sucb is not tbe ease in tbe present action. Here it is not a matter of reallotment of bomestead. Tbe homestead which has been allotted to plaintiff, as be alleges in bis complaint, was subject to tbe judgment under which defendant Jackson is proceeding. As against this judgment, there has been no determination of tbe extent of plaintiff’s bomestead in tbe lands in question. Hence, tbe judgment creditor bad tbe right to proceed originally for allotment of bomestead, which is not in conflict with decisions on appeals in former actions, supra.

Therefore, tbe order dissolving tbe injunction was properly entered.

Affirmed.

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Winborne, J.

As determinative of this appeal the appellant states this question: “Where a judgment debtor’s homestead has been allotted, can the judgment creditor have the homestead reallotted merely upon a *410 new execution or are tbe provisions of G. S., 1-373, mandatory and exclusive ?”

This question is predicated upon tbe assumption that in present case judgment creditor is restricted to a proceeding for reallotment of homestead. If sucb were tbe case, it is true that tbe creditor would be required to pursue bis remedy by an action in equity, as in Vanstory v. Thornton, 110 N. C., 10, 14 S. E., 637, or by application to tbe clerk of Superior Court under provisions of G. S., 1-373. See McCaskill v. McKinnon, 125 N. C., 179, 34 S. E., 273.

But sucb is not tbe ease in tbe present action. Here it is not a matter of reallotment of bomestead. Tbe homestead which has been allotted to plaintiff, as be alleges in bis complaint, was subject to tbe judgment under which defendant Jackson is proceeding. As against this judgment, there has been no determination of tbe extent of plaintiff’s bomestead in tbe lands in question. Hence, tbe judgment creditor bad tbe right to proceed originally for allotment of bomestead, which is not in conflict with decisions on appeals in former actions, supra.

Therefore, tbe order dissolving tbe injunction was properly entered.

Affirmed.

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38 S.E.2d 155, 226 N.C. 408, 1946 N.C. LEXIS 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sample-v-jackson-nc-1946.

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