JONES v. BRITTON

The plaintiff Jones had docketed his judgment against the defendant Britton for $50, with interest from 29 January, 1887, and for costs; and at the time the same was so docketed the said defendant was a citizen of this State and entitled to the right of homestead, and was seized and possessed of the land specified in the complaint. He had no personal property subject to levy, and the land mentioned was all he had, was of value not exceeding $1,000, and he was entitled to (167) have his homestead therein.

The following is a copy of so much of the complaint as it is material to report:

"6. That plaintiffs are further informed and believe that, since the docketing said transcript of said judgment, the defendant Britton has sold and conveyed to defendant R. W. Pittman the timber trees standing on said tract of land; that a good portion of said tract of land is cleared and in a state of cultivation, while the other portion is valuable, chiefly and principally, for its timber trees.

"7. That the defendant Pittman, by virtue of his said purchase, is now cutting and removing from said land the said timber trees.

"8. That defendant Britton is still living in the county aforesaid, and the said judgment is unpaid and in full force.

"9. That if the defendants are allowed to cut and remove said timber trees they will greatly reduce and impair plaintiffs' security for said judgment debt and inflict upon plaintiffs irreparable damage.

"10. That there now exist on said land a mortgage lien and a judgment lien amounting to several hundred dollars, prior to the said lien of plaintiffs, as plaintiffs, are informed and believe.

"11. That plaintiffs have commenced an action in the Superior Court of said county to enjoin defendants from cutting and removing said timber trees, and have caused a summons to be issued commanding the defendants to appear at next term of said Superior Court."

A judge at chambers granted an injunction pending the action until the hearing upon the merits. At the final hearing the court dissolved that injunction and "ordered and decreed that the plaintiffs are not entitled to have the defendants enjoined from cutting said timber trees," etc. The plaintiff having excepted, appealed from that order to this Court.

MERRIMON, J., after stating the case as above:

The Constitution (Article X, sec. 2) gives and secures to every resident of this State the right of homestead. If he has land he is entitled to have a homestead therein, as allowed, "exempt from sale under execution, or other final process obtained on any debt," subject to certain specified exceptions. The several statutory provisions prescribing how it shall be valued and laid off to the owner thereof do not give it. They serve the purpose of ascertaining the value thereof, locating it particularly and defining its limits. Neither the constitutional provision cited, nor any statute, creates, defines, or limits an estate in the owner of the homestead in the land embraced by it — he has, and continues to have, such estate in the lands embraced by it as he may have acquired from any source, unaffected as to its character or extent, save that while the homestead as allowed lasts, it remains "exempt from sale under execution or other final process obtained on any debt," and it lasts during the life of the owner thereof; and, after his death, during the minority of his children, or any one of them, and the widowhood of his widow, unless she be the owner of a homestead in her own right. Constitution, Art. X, secs. 2, 3, 5.

The condition and measure of the estate of the owner of the homestead, in the land, is not changed by, or because of, the homestead — the estate, unchanged, continues — the restriction, the limitation that distinguishes the homestead, is upon the right of the judgment creditor to have the land sold by execution or other proper final process to satisfy his docketed judgment, which constitutes his lien upon the land. So that, when the owner sells his estate, whatever its condition or (169) measure, in the land constituting his homestead, he sells it subject to his judgment creditor's lien, if there be such creditor; but he also sells the advantage that it shall not be sold at the instance of the creditor, until the exemption "from sale under execution or other final process obtained on any debt" shall be over. It is this exemption from sale that distinguishes the homestead from other lands of its owner. It suspends and prevents the remedy of the creditor by execution, or other final process, as long as it continues. Markham v. Hicks, 90 N.C. 204; Rankin v. Shaw, 94 N.C. 405.

The rights of the owner of the homestead, as to it, are not abrogated or essentially different from his rights as to other lands he may own, except when there are liens upon it that cannot be enforced while it continues to be the homestead. When such liens exist, he is bound in conscience, and by the principles of justice, to use and care for the homestead prudently and fairly, in the way and manner such property is employed by ordinarily prudent men, in continuously, in the course of living promoting their just advantage and the support, convenience and comfort of their families. What the character and extent of such use shall be, will frequently depend on the nature and condition of the homestead.

The purpose of the law is to allow the debtor to have his homestead — his home — free from sale under final process, as prescribed, for the benefit of himself and his family. It is not contemplated or intended that he shall arbitrarily destroy its value, by unnecessarily cutting the timber trees that may be on it, or by pulling down and destroying the buildings on it, so as to disappoint the just rights and expectations of the creditor having a judgment lien upon it. The latter, when the exemption from sale is over, should find the property — not exhausted and rendered valueless — but substantially as it was when the exemption began, less the loss and depreciation arising from the reasonable use of it, and wear and tear of buildings. The law expressly gives the judgment creditor a lien on the homestead. This lien is not (170) meaningless and nugatory; it implies that the creditor shall have the property devoted to the satisfaction of his judgment debt, as far as may be necessary, when and as soon as the exemption of it from sale shall be over. The law is true and sincere — it does not thus create and allow a lien in favor of the creditor, and leave the owner of the homestead at liberty to destroy the property, and thus render such lien worthless. As we have seen, he is allowed to live upon and use it, but not destroy or impair the substance of it, as against the creditor having a lien, nor for the like reason will the person to whom he may sell his homestead be allowed to do so.

Obviously, the creditor having such lien is entitled to have the property, to which it attaches, protected against the destruction or unreasonable impairment of it prejudicial to that lien. As it cannot be enforced while the exemption of the property from sale lasts, the property will be properly protected during that time, so that the creditor may, in the end, have the benefit of his lien. A Court of Equity will not hesitate, in a proper case, to interfere by injunction, or in other proper way, for such purpose. Otherwise, the creditor would have no remedy during the exemption. Webb v. Boyle, 63 N.C. 271; Gordon v. Lowther, 75 N.C. 193; Braswell v. Morehead, Bus. Eq., 26; Cassup v. Bates, 11 Conn. 51.

In the case before us, the defendant Britton was entitled to his homestead in the lands described in the complaint. He sold the timber trees standing thereon to his codefendant, to be cut down and carried away. The plaintiff, at the time of such sale, had docketed Judgment against the owner of the homestead, which constituted a lien on the land. The owner had no right to thus sell the timber trees, simply for gain; he could, lawfully, only cut and use such of them as were necessary for the reasonable use of the homestead property — for making repairs, necessary houses, fences and the like. To sell and cut away all (171) the timber trees, for simple gain, was to substantially impair the homestead property subject to the lien, and this, for the reason stated, is not allowable.

This is not strictly an action to prevent waste, but to prevent an injury in the nature of waste, growing out of the peculiar relations of the parties, brought about by the exemption of the property from sale under final process, until the homestead shall be over. Courts of equity frequently interfere in a great variety of cases, having peculiar characteristics, to prevent injuries to property, when the courts of common law cannot afford adequate relief in the preservation of the same. Story's Eq. Jur., sec. 912, et seq.

There is, therefore, error. The order denying the injunction must be reversed, and an order entered granting an injunction restraining the defendants from cutting the timber trees on the land for any purpose other than necessary repairs and improvements thereon.

Error.