James v. . West

Decided January 5, 1877

Supreme Court of North Carolina · decided 1877-01-05

Homestead — Failure of Lien. Civil Action, for the recovery of Land, tried at Fall Term,, 1876, of Wayne Superior Court, before Seymour, J. The action was brought to the Superior Court of Duplim County and removed to Wayne. The plaintiff claimed under a deed executed by the Sheriff of Duplin, and introduced a transcript of a judgment;, rendered at Fall Term, 1867, of the Superior Court of saidl County in an action wherein Jere.

Cited by 1 later decisions — most recently December 1828

1 state decisions

Relies on McKeithan v. . Terry

Good law ✅— No negative treatment on recordhow we know

Decided 1877-01-05

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Rbade, J.

¶1 The levy of February, j.868 was prior to the-Constitution which establishes a homestead and created &■ lien which, if it had been kept up would have defeated the= defendants’ homestead. McKethan v. Terry, 64 N. C. 25.

¶2 But the plaintiff instead of taking out a ven ex. with ajL fa. clause, took out an alias ji. fa. after the Constitution went into effect. And he thereby lost his prior lien. Yarboro v. State Bank, 2 Dev. 23.

¶3 There is no error.

¶4 Per Curiam. Judgment affirmed..

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Case posture

Posture: CIVIL ACTION, for the recovery of Land, tried at Fall Term, 1876, of WAYNE Superior Court, before Seymour, J . The action was brought to the Superior Court of Duplin County and removed to Wayne. The plaintiff claimed under a deed executed by the Sheriff of Duplin, and introduced a transcript of a judgment rendered at Fall Term, 1867, of the Superior Court of said County in an action wherein Jere. Pearsall, G'd'n, c. was plaintiff and the defendant, Owen West et. al were defendants. On said judgment an execution issued January 9th, 1868, and was returned levied February 3rd, 1868, on the locus in quo . On the 15th of October, 1868, another execution issued on said judgment but by direction of the creditor was not levied on the property of West. On the 10th of March, 1869, another execution issued on said judgment returnable to Spring Term, 1869, and upon which the former levies were entered and under which on May 1, 1869, the Sheriff sold the land in dispute when W. R. Ward became the purchaser and transferred his bid to the plaintiff to whom the Sheriff executed a deed. The defendant claimed the land as a homestead it being admitted that it did not exceed $1,000 in value. Plaintiff insisted that by reason of the levy of February 3d 1868, the defendant was not entitled to a homestead but upon an intimation of His Honor that this levy was waived by the issuing of subsequent executions, the plaintiff submitted to a nonsuit and appealed.

Source: CourtListener

Court

Supreme Court of North Carolina