Opinion
(December Term, 1859.)
Where a deed conveyed all the grantor's property except such part as the law allows poor debtors, it was Held that property which might have been set apart for the debtor, under sections 8 and 9 of chapter, 45, Rev. Code, but was not, did not fall within the exception, but passed by the deed.
TROVER, tried before Dick, J., at the Spring Term, 1859, of JOHNSTON.
A. M. Lewis and R. G. Lewis for plaintiff.
H. W. Miller and S. H. Rogers for defendant.
The plaintiff declared for the conversion of a number of hogs, a quantity of corn and fodder, farming utensils, and several articles of household furniture consisting of beds, chairs, etc., which he claimed under a deed executed to him by one George W. Edwards, dated 7 September, 1855, duly proved and registered, the material portion of which deed is as follows:
"Know all men by these presents, that I, George, W. Edwards, of the county of Johnston aforesaid, in consideration of the sum of $1, to me in hand paid by West Massey, of the county aforesaid, the receipt whereof is hereby acknowledged, do hereby given, grant, sell and convey unto the said West Massey all the goods, chattels, wares, and merchandise following, to wit, one sorrel horse, six heads of hogs, one cart, one carryall, all my farming utensils, all of my growing crop, and household and kitchen furniture (excepting only such part as the law allows poor debtors), to have and to hold the same," etc.
It was proved that the defendant had the property in controversy levied on and sold by a constable to satisfy sundry executions which he held against Edwards, issued on judgments obtained (144) subsequently to the making and registration of the deed.
It was insisted by the defendant's counsel that a part of the property in question was excepted from the deed as being that which the grantor was entitled to hold free from execution by Rev. Code, ch. 45, sec. 8, entitled "Executions."
The court was of opinion against the defendant upon this point, and under instructions to that effect the jury found a verdict for the plaintiff. Judgment. Appeal by defendant.
We concur with the court below in the opinion the whole of the debtor's property passed under the deed of 7 September, 1855, except the articles enumerated in Revised Code, ch. 45, sec. 7.
Articles which may be allowed under section 8 until they are set apart according to the provisions of section 9 are in every respect undistinguishable from the rest of the debtor's property. The whole is subject to execution, and may be treated in all respects as property unincumbered by any lien growing out of the statute provisions made for "poor debtors."
The object of the deed under consideration seems to have been to convey everything that was not already protected from a levy, and consequently it embraced everything not absolutely exempt. Other articles than the excepted ones of section 7 are only conditionally exempt, and do not belong to the charity list until certain legal proceedings are had by which the property is impressed with a new character — a character which it does not instrinsically possess. It does not appear that any articles had been set apart under the provision of section 8 and 9 of the act at the time of the execution of the deed, and from this defect of evidence, as well as from the fact that the defendant made a levy on all such as might have been allotted, we assume there (145) was no allotment.
Under such circumstances a deed of all property "except such as is allowed by law to poor debtors" covers all except such as was then under legal exemption.
If this deed be tested by another rule of construction it may be made, perhaps, a little more plain. Take its provisions, as we are required to do, most strongly against the grantor, and allow the greatest amount of property to pass by it which its words will warrant, and clearly all will be embraced save such as possesses an inherent exemption from the claims of creditors — the articles enumerated in section 7. There is
PER CURIAM. No error.
Cited: Norman v. Craft, 90 N.C. 214.
Dist: Branch ex parte, 72 N.C. 110.