The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1868-11-03
OPINION OF JUDGE BROOKS.

The questioned certified in this cause by Mr
Register Shaher is -
Is the bankrupt entitled to the homestead pro-
vided f;.. by the Act OF Assembly of North Car
oliua passed at the Sessions OF 1885, %, as an
xemption-when the bankrupt has not filed his
petition and had the same laid Oh to him ac-
cordng to the provisions OF said Act
I have no doubt as to the answer must make
to the question certified Tie bankrupt IS not
entitled to the exemption of the homestead
claimed by him
The language used in the 1tth Section of the
! Hankruptcy Act is much more clcar-less doubt
! full as to its meaning than that employed IN
! many other sections OF the Act.
! The first part of this section, being the 10th
General Clause of the Act, makes clear provl-
sion in regard to the character Of the title which
passes to the assignee in the bankrupts property
| bv the assignments aud as clearly provides that
it shall embrace all his property. real and per-
sonal except as hereinafter provided
Now, does the exceptions provided for IN the
same section. 47th General Clause, embrace 4
homestead under the circumstances OF this case!
| think it does not and an very clear OF doubt
in that opinion
It is by virtue of The latter part of the General
Clause last referred to- that this exemption IS
saved to the bankrupt, as he contends hat
| simply provides that in addition to such exemp-
tons as had been previously provided for, there
should be exempted and excluded from the oper-
atoms of the law all such property as was ex-
empted to a debtor and not liable to execution
according to the provisions OF the laws OF the
State in force in 1868, in which the bankrupt
resided.
Now, if any creditor of this bankrupt, pre-
| vious to his bankruptcy had warranted or sued
him. obtained his Judgment and his execution
\ ! IL, h,I-a I'D mo "a M
sold all the title of the defendants in such exc
| cution in the lands now claimed to be exempted
! as homestead?
IF no other property conld be found woul'
not the officer having such executions in hant
have been bound to levy upon the homestead
and if he had failed to do s., would he not have
been responsible to the creditor! think h
would.
: The Act of $3.50 provides that debtor
=, may petition to Court, have Commissioners AZ
u pointed that such Commissioners after bcln
. sworn shall examine the lands in which the rcsel
walton is desired; that they shall report, and tn;
: such report shall be recorded, and that the land
u SO valued and reported shall, aticr tie procecc
T. i.g< haze been registered, not be subject to b
II sold by creditors whose debts have been Their
% after contracted. 1t follows that for any del
20 contracted at any time prior to the contormln
on the part of the debtor to all the requirepen
III of that Act, the homestead is not relieved, an
: if the debtor does not at any time comply Wit
its provisions, as il this case, there can be l
debts of his from which the honest cad is relieve
- The objection taken by Mr Jackson, couns
~ for the bankrupt, that the exceptions to the l
u port OF the assignee not taken in an a
'" time. cannot be sustained.
;" The question in this case is not whether t
nc much or not enough has been assigned the ban
H. rupt by the assignee. But whether under t
he law this property could be embraced in the i
'n' of exemptions, or whether the title to the SAD
70 did not by force Of the law and the assigume
III pass to the assignee, for the uses and purpos
ny declared in the Act. | think that al the ii
81 held by the bankrupt at the time Of filing
Gu petition did So pass to the ass Gnee and that
." r. last named officer must now sell the same,
!" hold the proceeds 10 be distributed underth Ia
Tn Let this be certified to \. ". Shafer, is
'e' Register. -.-
&C. PRICE OF LANDS IN Wa splendid
nay tate OF fifteen hundred acres in Gocchland cou,
was scld the other day to two gentlemen fir
Maryland, for twenty-five dollars and fifty ce
an acre. This is q toierably fair price for il
ice now in Virginia even like that of Boiling ua
of for there is but little money in the State to
he chase and no reliable labor to cultivate the S
all If. however there had been emgrants settling
go cur State, this fine body of land would h
e Is brought far more. 1t would have been cut
this into divisions of forty or fifty acres each,
sold for two or three times the price that
nth been obtained for it, if not more.-Nor1
JOarfdl