Opinion
(January Term, 1877.)
Homestead — Failure of Lien.
The lien created by a levy made under execution prior to the adoption of the Constitution of 1868, is lost by a failure to take out a ven. ex. and the issuing of an alias fi. fa. after the Constitution went into effect.
( McKethan v. Terry, 64 N.C. 25; Yarboro v. State Bank, 2 Dev. 23, cited and approved.)
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.
Messrs. Smith Strong, for plaintiff.
Mr. J. L. Stewart, for defendant.
The levy of February, 1868 was prior to the Constitution which establishes a homestead and created a lien which if it had been kept up would have defeated the defendants' homestead. McKethan v. Terry, 64 N.C. 25.
But the plaintiff instead of taking out a ven. ex. with a fi. fa. clause, took out an alias fi. fa. after the Constitution went into effect. And he thereby lost his prior lien. Yarboro v. State Bank, 2 Dev. 23.
There is no error.
PER CURIAM. Judgment affirmed.