Opinion
(February Term, 1894.)
Homestead — Priority of Liens.
(For syllabus see paragraph 6 of the syllabus in same case reported in 112 N.C. at page 196.)
Under a former decree of the court (following the directions of the opinion of the Supreme Court as reported in Vanstory v. Thornton, 112 N.C. 196) the land described in the pleadings and in the several mortgages mentioned was sold by commissioners appointed for that purpose, and a report of sale made to Fall Term, 1893, of CUMBERLAND. At said last mentioned term of the court an order and decree of confirmation was made, and the plaintiff thereupon insisted that the proceeds of sale, or so much thereof as was sufficient for that purpose, should be applied to plaintiff's judgment, interest and costs, before any part thereof was set apart to defendant as a homestead, or in lieu of homestead, or applied to the previous mortgages, and moved the court to apply the proceeds, according to his contention. The court declined to so apply the proceeds, evcept [except] the excess of one thousand dollars, and signed judgment accordingly, and thereupon plaintiff (378) excepted and appealed.
Thomas H. Sutton for plaintiff.
George M. Rose and N. A. Sinclair for defendants.
(PLAINTIFF'S APPEAL.)
CLARK, J., dissents arguendo.
The decree making a distribution of the fund arising from the sale of the land described in the mortgages is in exact accordance with the judgment of this Court at February Term, 1893 ( 112 N.C. 196.)