The very carefully prepared and interesting brief of the defendants’ counsel has been fully considered by the Court, but fails to satisfy us that the judgment is barred or that its lien does, not continue so as to constitute a charge upon the land described in the complaint. Neither do we think the liability of Mrs. Gash’s estate is to be postponed under the circumstances of this case until the proceeds of the' property of the alleged surety in the judgment can be followed and subjected. Affirmed.
Blythe v. Gash, 114 N.C. 659 (1894)
Feb. 1894
·
Supreme Court of North Carolina
114 N.C. 659
O. V. F. BLYTHE, Administrator of Rachel Gash, deceased, v. THOMAS J. GASH, W. J. HOLDEN, et al.
Homestead — Judgment Lien — ■ When Enforceable.
On March 18, 1876, a judgment was docketed against G. and a homestead allotted on July 31,1876; she conveyed it to H. December 29, 1881, and died June 2, 1891: Held, in a proceeding by G.’s administrator to sell the land for assets to. pay the judgment, that the lien of the judgment continued so as to be a charge upon the land and that the administrator was entitled to sell it to pay the judgment and costs of its enforceipent.
This was a proceeding, instituted by the plaintiff against T. J. Gash, before the Clerk of' the Superior Court of Henderson County. H. R. Holden and AY. J. Holden, having made affidavit that they were claimants of the land which plaintiff asked should be subjected to the lien of the judgment, were made parties defendant. The case was certified by the Clerk to the Superior Court, and coming on to be heard by Mclver, J., at Fall Term, 1892, of Henderson Superior Court, it appearing to the Court that there was no personal estate belonging to the plaintiff’s intestate, Rachel Gash; that there existed a judgment in favor of Elias, Cohen & Roessler against T. J. Gash and Rachel Gash, said judgment having been duly docketed on the 18th of March, 1876, judgment docket Superior Court Henderson County; tliat a homestead had been allotted to the said Rachel Gash on the 81st of July, 1876; that the said Rachel Gash had conveyed the said homestead so allotted on the 29th of December, 1881, to G. AY. Holden, who had subsequently conveyed same to the defendants H. R. and AY. J. Holden, who are now in possession, and his Honor being of the opinion that the only question at issue was “whether the homestead conveyed by R. Gash was subject to the lien of *660the judgment of Elias, Cohen & Roessler, the homestead estate of R. Gash having terminated,” it was therefore ordered, adjudged and decreed that the plaintiff have judgment for the relief prayed for in his complaint, and. that O. V. F. Blythe, administrator, be empowered and directed to sell the homestead conveyed by Rachel Gash, and from the proceeds of sale to discharge the lien of the judgment and costs incurred in its enforcement.
• Among the defences the defendants alleged that “Rachel Gash, deceased, was only security to the alleged creditors of her son, T. J. Gash, who is and has been for a number of years abundantly solvent and worth the said indebtedness,” and that there was ample property of said T. J. Gash within reach of the creditors if they have any valid claim.
The defendants appealed from the judgment rendered.
Mr. II. G. Ewart, for-plamtiif.
Messrs. W. A. Smith, and T. J. Richnan, for defendants (appellants).