— after stating the case: When the payee Plarris endorsed the note sued upon to the plaintiff, it was past maturity, and the plaintiff took it “ without prejudice to any set-off, or other defence, existing at the time of the -assignment.” The Code, § 177.
At the time of the assignment, the defendant Richardson Rad become the owner of the Sikel & Hellen judgments against Harris, and these constitute a valid counter-claim against the plaintiff, unless he can show such circumstances as will except him from the general principles applicable to such a defence. McClenahan v. Cotten, 83 N. C., 332; Riddick v. Moore, 65 N. C., 386.
This, he contends, he has done by showing that, at the time of the assignment of the note, and up to the trial, his assignor, Harris, did not possess over one hundred and fifty dollars worth of personal property, and that he, the plaintiff assignee, has a right, with the consent of Harris, to have the quality of the personal property exemption now impressed upon the note, and thus defeat the counter-claim •of the said defendant.
The note had never been included in any assignment of •exemption to said Harris; but even if it had been so included, we are clearly of the opinion that it would have lost its •quality of exemption as soon as it was transferred. In other words, that so far as personal property is,concerned, the right of exemption is personal to the judgment debtor. This view is sustained by the case of Johnson v. Cross, 66 N. C., 171, where it is held that, upon the death of the debtor, the exempted property passes to his executor or his administrator, to be administered in the same manner as other assets. To hold otherwise would present the anomaly of a judgment debtor having $500 worth of property set apart to him at the time of the levy or sale, and the quality of exemption concurrently adhering to perhaps thousands of dollars’ worth of choses in action which had been included in various pre*649vious assignments of his exemption, and which had been transferred by him. On the other hand, if the transferred choses in action are to be deducted in every assignment of the exemption, the appraisers would be involved in the inextricable difficulty of ascertaining how many were outstanding, how much is due upon them, whether they are solvent, &c. Such absurdities were never contemplated by the law-makers, and we cannot adopt a principle which would lead to such a conclusion.
Another contention of the plaintiff is, that, as the judgments could not have been enforced against the homestead, they ought not to be enforced against the purchase money due upon a sale of the same. The answer is, that when Plarris sold his homestead, he converted it into personal property, which became the subject of the personal property exemption, while the land retained the quality of the homestead exemption in the hands of the purchaser.
It follows from what we have said, that the Sikel & Hellen judgments were properly held to be a defence. They seem to have been submitted to the jury with the Pape & Co. judgment upon the counter-claim for a breach of the warranty against incumbrances. We suppose that it was in this aspect of the case that his Honor charged the jury that Richardson was entitled to only $175, the amount he paid for them. If there be any error in restricting them to this second defence and applying the rule of damages applicable thereto, it cannot be corrected here, as the defendant has not appealed. He is, therefore, entitled, on the Sikel & Hellen judgments, to only $175 and eight per cent, interest thereon from the first of April, 1887.
We think that his Honor erred in permitting the jur}^ to consider the Pape & Co. judgment in estimating the damages for the breach of warranty. It is admitted that it has never been extinguished by the defendant Richardson, and that he has never paid anything on it.
*650“The rule as to the measure of damages for breach of the covenant against an incumbrance is, that thé covenantee is entitled to recover the amount necessary to extinguish it; but, if he has not extinguished it, and it is still outstanding, his damages are but nominal.” Delansyne v. Norris, 7 Johns, 358; Richard v. Bent, 59 Ill., 38; S. C., 14 Am. Rep., 1; Johnson v. Collins, 116 Mass., 392; Read v. Pearce, 36 Maine, 445; Eaton v. Lyman, 30 Wis., 41; Foote v. Burnett, 10 Ohio, 317; 2 Greenleaf Ev., 242.
We agree with his Honor that the mere knowledge of he existence of the judgments at the time of the sale would not defeat the right of the defendant to recover on the warranty. We concur also in his ruling that there was no reasonably sufficient testimony to show that the sale was made subject to the said judgments.
As the jury found that the defendant was the owner of the Sikel & Hellen judgments at the date of the assignment of the note, and as the amount paid for the same is not disputed, the errors committed maybe corrected by a modification of the judgment in conformity to'the principles declared in this opinion.
Modified and affirmed.