Homestead — Failure of Lien.
The lien created by a levy made under execution prior to the adoption off the Constitution of 1868, is lost by a failure to take out a ven. ex. and'l 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 Duplim 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 saidl County in an action wherein Jere. Pearsall, G-’d’n, &c. wasv 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 om 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 laud in dispute when W. R. Ward became the purchaser aud transferred his hid 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. Plaintiffr" *291insisted 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.
Rbade, J.
The levy of February, j.868 was prior to the-Constitution which establishes a homestead and created &■ 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 ajL fa. clause, took out an alias ji. 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..