Opinion
June Term, 1876.
Execution — Homestead — Amendment After Verdict.
1. A plaintiff, after judgment in her favor, has no right to have the defendant's land sold, without first having his homestead laid off. The excess only, after a homestead has been assigned to the defendant, is subject to execution sale.
2. The plaintiff brings an action in the nature of ejectment, and after trial and verdict, asks leave to amend the pleadings, so as to change it into an action to remove a cloud from her title, caused by fraudulent deeds set up by third persons: Held, that such amendment was irregular, and ought not to have been allowed.
Ejectment, tried before Moore, J., at Spring Term, 1876, of BEAUFORT.
The facts necessary to the understanding of the case as decided are fully stated in the opinion of the Court.
Verdict and judgment for the plaintiff, whereupon the defendant appealed.
G. H. Brown, Jr., and Mullen Moore for appellant.
Carter, contra.
Without laying off the defendant's homestead to which he was entitled, the plaintiff had the land levied on and (29) sold, and bought the same, and instituted this action to recover the possession. The plaintiff has no right to recover the possession. If the land had been worth more than the homestead, and the plaintiff had caused the homestead to be laid off, then, of course, the excess would have been subject to execution sale; but it was not done, and it was found as a fact that the homestead will cover the whole of the land. There must be judgment, therefore, for the defendant.
After trial and verdict the plaintiff asked leave to amend her complaint, so as to change it into an action to remove a cloud from her title caused by fraudulent deeds set up by third persons. This was irregular and ought not to have been allowed.
PER CURIAM. Reversed, and judgment here for defendant.
Cited: Mebane v. Layton, 89 N.C. 401;