Waters v. Stubbs, 75 N.C. 28 (1876)

June 1876 · Supreme Court of North Carolina

75 N.C. 28

ALPHA WATERS v. LEVI STUBBS.

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.

The plaintiff brings an aetiom in the nature of Ejeetment, and after trial and verdiet, asks leave to amend tire 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 t® have bees allowed.

Civil Action in the nature of Ejectment, tried before before Moore, J., at Spring Term, 1876, Beaufort Superior Court.

The facts necessary to an understanding of the case as decided, are fully stated in the opinion of the Court.

There was a verdict and judgment for the plaintiff, whereupon the defendant appealed.

Q. H. Brcnon, J.r, and Mullen & Moore for the appellant.

Carter, contra.

Reade, J.

Without laying off the defendant’s homestead to which he was entitled, the plaintiff had the land levied on and sold; and bought the same; and instituted this action to recover thepossession. The plaintiffhas no right to recover the possession. If the fond 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 executiomsale gbut it wras not done, and it is found as a-fact that the homestead will cover the whole 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.

Pee Curiam. Judgment reversed, andjudgment here for defendant.