Opinion
(February Term, 1894.)
Homestead — Judgment Lien — When Enforceable.
On 18 March, 1876, a judgment was docketed against G., and a homestead allotted on 31 July, 1876; she conveyed it to H. 29 December, 1881, and died 2 June, 1891: Held, in a proceeding by G.'s administrator to sell the land for assets to pay the judgment, that the lien of the judgment continued so as to be a charge upon the land and that the administrator was entitled to sell it to pay the judgment and costs of its enforcement.
PROCEEDING, instituted by the plaintiff against T. J. Gash, before the clerk of the Superior Court of Henderson County. H. R. Holden and W. J. Holden, having made affidavit that they were claimants of the land which plaintiff asked should be subjected to the lien of the judgment, were made parties defendant. The case was certified by the clerk to the Superior Court, and coming on to be heard by McIver, J., at Fall Term, 1892, of HENDERSON, it appearing to the court that there was no personal estate belonging to the plaintiff's intestate, Rachel Gash, that there existed a judgment in favor of Elias, Cohen Roessler against T. J. Gash and Rachel Gash; said judgment having been duly docketed on 18 March, 1876, judgment docket Superior Court Henderson County, that a homestead had been allotted to the said Rachel Gash on 31 July, 1876, that the said Rachel Gash had conveyed the said homestead so allotted on 29 December, 1881, to G. W. Holden, who had subsequently conveyed same to the defendants H. R. and W. J. Holden, who are now in possession, and his Honor being of the opinion that the only question at issue was "whether the homestead conveyed by R. Gash was subject to the lien of the judgment of Elias, Cohen Roessler, (660) the homestead estate of R. Gash having terminated," it was therefore ordered, adjudged and decreed that the plaintiff have judgment for the relief prayed for in his complaint, and that O. V. F. Blythe, administrator, be empowered and directed to sell the homestead conveyed by Rachel Gash, and from the proceeds of sale to discharge the lien of the judgment and costs incurred in its enforcement.
Among the defenses the defendants alleged that "Rachel Gash, deceased, was only security to the alleged creditors of her son, T. J. Gash, who is and has been for a number of years abundantly solvent and worth the said indebtedness," and that there was ample property of said T. J. Gash within reach of the creditors if they have any valid claim.
The defendants appealed from the judgment rendered.
H. G. Ewart for plaintiff.
W. A. Smith and T. J. Rickman for defendants.
The very carefully prepared and interesting brief of the defendants' counsel has been fully considered by the Court, but fails to satisfy us that the judgment is barred or that its lien does not continue so as to constitute a charge upon the land described in the complaint. Neither do we think the liability of Mrs. Gash's estate is to be postponed under the circumstances of this case until the proceeds of the property of the alleged surety in the judgment can be followed and subjected.
Affirmed.
Cited: Tarboro v. Pender, 153 N.C. 430.
(661)