{ "id": 8687853, "name": "BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY v. P C. RILEY", "name_abbreviation": "Board of Commissioners of Montgomery County v. Riley.", "decision_date": "1876-06", "docket_number": "", "first_page": "144", "last_page": "147", "citations": [ { "type": "official", "cite": "75 N.C. 144" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [], "analysis": { "cardinality": 420, "char_count": 6635, "ocr_confidence": 0.445, "pagerank": { "raw": 3.6660894562510953e-07, "percentile": 0.8907422787969491 }, "sha256": "69811609fbfb6becf4210bbc6cc14769230f4911d7c68b48c54d371fa011c4f2", "simhash": "1:ba01983e7e185cce", "word_count": 1138 }, "last_updated": "2023-07-14T18:17:21.962704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY v. P C. RILEY." ], "opinions": [ { "text": "Settle, J.\nThe incident, though sometimes more important in results, generally follows the principal.\nThe process by attachment, is a mode of enforcing the collection of a debt ancillary to a suit, regularly instituted in the C; urts, and followed by a judgment and execution thereon.\nCan a party, who proceeds by attachment, place himself in a better position than one who sues regularly in the Courts and obtains a judgment, and sues out execution thereon ?\nWe need not seek beyond the last number of our Reports to find the dignity of the personal property and the homestead exemptions under our Constitution.\nIn Curlee v. Thomas, 74 N. C. Rep., 51, the ruling in Duval v. Robbins, 71 N. C. Rep., 218, is quoted with approbation ;\nThe personal property exemption cannot be reached by \u25a0execution at all, for as to that, under the Constitution, there \u25a0 can be no creditor and no forfeiture, even by an attempt to \u00a1make a fraudulent conveyance. It is confirmed by the Con.--stitution, and is inviolable.'\u2019\nIn Crummen v. Kennett, 68 N. C. Rep., 494, it is held that ;a grantor, who makes a conveyance of his land, which is \u00a1fraudulent as to his creditors, does not thereby forfeit his \u00a1right to a homestead as to such creditors. They can sell, \u00a1under an execution, only the remaining part of his land, \u00a1leaving the homestead to be con tested between the alleged \u25a0 fraudulent grantor and grantee.\nAnd this is further supported by the ruling in Lambert v. McKinney, 72 N. C. Rep., 348, where it is held that the title \u00a1to the homestead is vested in the owner, by the Constitution of this State, and no allotment by the sheriff is necessary to vest ,the title thereto. The allotment by the Sheriff is only for the \u25a0 purpose of ascertaining whether there be an excess of property over the homestead, which is subject to execution.\nAnd this Court has gone so far as to hold that the maker \u25a0of a note, having at the time a .wife and children, cannot, by stipulation to that effect, in the note, waive the benefit of the homestead exemption, as to the debt evidenced by the note, for that the owner of the homestead can part with it only by the formalities prescribed by law,to-wit; by deed, with the consent of the wife, evidenced by her privy examination.\nIn Grubbs v. Ellyson, 23 Arkansas, 287, it is said: \u201c An attachment is but a preliminary execution, so that a homestead is not subject to attachment any more than it is to an execution.\u201d\nThe personal property and homestead exemptions are fixed by the Constitution, and are not subject to legislation.\nThe Legislature can only facilitate or impede the remedies by which the Constitutional rights may be enforced, but the rights themselves are beyond the province of the Legislature.\nThis Court, from Hill v. Kesler, 63 N. C. Rep., 437, to this instance, has given a fair and reasonable construction to these beneficient provisions of the Constitution, and will adhere to its decisions unless they are reversed, in a proper case, by the Supreme Court of the United States.\nThe judgment of the Superior Court is reversed.\nLet this be certified, &c.\nPer Curiam. Judgment reversed.", "type": "majority", "author": "Settle, J." } ], "attorneys": [ "Neill McKay and Pemberton, for the appellant.-", "Mamey and M. S. Robbins, contra." ], "corrections": "", "head_matter": "BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY v. P C. RILEY.\nThe personal property of a resident of this State, exempted from sale under execution hy the Constitution, cannot be sold under process of attachment.\n(Gurlee v. Thomas, 74 N. C. Rep., 51; Duval y. Hollins, 61 N. C. Rep., 218; Ch'ummenY. Bennett, 68 N. C. Rep., 494; Lamberts. Kinnery, 74 N. C. Rep., 848; Hitt v. Keeler, 63 N. C. Rep., 437, cited and approved.)\nMotioN to vacate an attachment, heard before Buxton, J., at Spring Term, 1876, of Montgomery Superior Court.\nThe Board of Commissioners of Montgomery County commenced an action against the defendant, Peter C. Riley, former sheriff of said county, upon his official bond to recover the sum of $2,500, the amount of county and poor taxes collected for the year 1868, which it was alleged he had failed to account for and pay over. The summons was issued Dec. 8th, 1875, and served by publication.\nThe defendant was \u2022 elected sheriff of said county at the State election held on the 21st, 22d and 23rd days of April, 1868, and gave bond in the sum of $2,500 on the 25th day of July, 1868, conditioned as follows :\n\u201c The condition of the above obligation is such that whereas the above bounden Peter C. Riley has been elected high sheriff of Montgomery County; if, therefore, the said Peter C. Riley shall collect, pay over and account for the county and poor tax, then the above obligation to be void, otherwise to be and remain in full force and effect.\u201d\nThe attachment was issued December 13th, 1875, upon affidavit made before the Clerk of .the Superior Court by William McAllister, Chairman of the Board of County Commissioners, to the effect following: \u201c That he was advised and believed that Peter C. Riley, the defendant, has departed from the State with intent to defraud his creditors, or keeps himself concealed so that the ordinary process of law cannot be served upon him, and that he has assigned, disposed of or secreted, or is about to assign, dispose of or secrete some of his property, with intent to defraud his creditors.\u201d The attachment was levied on certain real and personal estate of the defendant. The defendant appeared at the return term and moved the Court, upon affidavit, to vacate the attachment ; among others upon the following grounds:\n1. The defendant is here to answer process.\n2. No established indebtedness is stated in the affidavit upon which the attachment was issued.\n3. The affidavit is defective, in not setting forth that the property therein alleged to have been assigned by the defendant to defraud his creditors, was in excess of his homestead and personal property exemption.\n. 4. That if the Act of Assembly in relation to attachment authorizes the seizure of property, real or personal, not liable to execution, the law is unconstitutional.\n5. The levy upon the personal property was void, because-it only amounted in value to $100, and the defendant, who-was a citizen of this State, with his wife and family here in possession of the property, was entitled, under the Constitution, to personal property to the value of $300,. exempt from execution, and a fortiori from seizure by attachment.\n6. The levy of attachment upon the realty was void, because it does not appear that the Sheriff assigned to the de-fendan this homestead of $1,000, exempt fiom seizure by the Constitution.\nThe Court refused to vacate the attachment, and the-defendant appealed. . \u201e\nNeill McKay and Pemberton, for the appellant.-\nMamey and M. S. Robbins, contra." }, "file_name": "0144-01", "first_page_order": 152, "last_page_order": 155 }