
    GARDNER & CLARK et al. v. B. L. McCONNAUGHEY.
    (Filed 20 December, 1911.)
    1. Exemptions — Personalty — Report of Appraisers — Specific Articles.
    When tliere has been a failure to levy tinder an execution on the property of a judgment debtor, a report of the jury of appraisers to set aside his personal property exemption will be void which does not set aside to him specifically the articles his exemption gives him, or allow him an opportunity to select the articles. Revisal, sec. G95.
    2. Same — Property Exempt — Levy—Time of Sale.
    The judgment debtor is entitled to have his exemption in personal property ascertained up to and just before the process of execution under the judgment is executed by a sale, and to select the articles as provided by statute; and, therefore, when a report of the jury of assessors has been declared void and ahother allotment is ordered to be 'made, it is error to include in the reallotment articles of personalty which the judgment debtor may have consumed- since the allotment under the void report. The distinction pointed out when a homestead is allotted under Revisal, secs. 687 and 692, by Clark, C. J.
    Appeal by defendant from Lane, J., at June Term, 1911, of BubKE.
    Tbe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Claris.
    
    
      J. T. Perkins and S. J. Ervin for plaintiffs.
    
    
      Spainhour & Mull for defendant.
    
   Clark, C. J.

Execution having been issued upon a judgment-taken before a justice of the peace, the sheriff, without levying upon the personal property of the defendant, summoned a jury of appraisers, who filed an itemized valuation of such property amounting to $740.62, and reported that, after deducting the $500 personal property exemption, the defendant possessed $240.62 of property which was subject to sale of execution, but without specifying and setting apart the articles which should be exempt from sale finder the execution, as required by Revisal, 697. Tbe defendant filed exceptions to tbe report of tbe appraisers as provided by Revisal, 699. At tbe term of tbe Superior Court next ensuing, tbe defendant moved to set aside tbe report of tbe appraisers as void, because it did not appear from tbe face thereof tbat there was any allotment of tbe articles set apart to tbe defendant as required by Revisal, 697.

Tbe court refused to set aside tbe report and directed tbe matter to be rereferred to tbe appraisers to specify tbe articles to be allotted to tbe defendant, and refused to direct tbat tbe allotment should be made out of articles possessed by tbe defendant at tbe time of said allotment. Tbe ruling of tbe judge was in effect tbat tbe defendant should take as a part of tbe allotment tbe articles of personal property which should have been consumed since tbe'first assessment.

Tbe report was void, because there were no articles specifically allotted to" tbe defendant as bis exemption, as required by Revisal, 695. Tbe judge further erred in directing tbat tbe defendant should be charged with tbe articles which bad been consumed or otherwise disposed of since tbe assessment, and also ignored tbe fact tbat other articles may have increased or depreciated in value since tbat date.

In Pate v. Harper, 94 N. C., 23, it was said: “We think tbe debtor is entitled to have bis exemption ascertained up to and just before tbe process is executed by a sale. While tbe process is in tbe officer’s bands in full activity tbe preliminary action of tbe appraisers is not conclusive, but remains in fieri, capable, at their instance, under tbe call of tbe officer, at least of correction and amendment. If property has been omitted which ought to have been put on tbe list, but was not known at tbe time to belong to tbe debtor, this could be done. Tbe appraisers ought also to have tbe power, and we think do have it, to enlarge tbe exemption, so tbat none which should be exempt shall be sold from him. Tbe mandate of-the statute is tbat tbe officer shall make bis levy upon tbe entire personal estate subject to seizure under execution, but, before he sells, to have so niucb of it set apart for tbe debtor, within tbe limit of value, as be may select, and when insufficient, all being below tbe value, such selection is unnecessary.”

In Jones v. Alsbrook, 115 N. C., 46, tbe Court quotes tbe above,.and adds tbat tbe judgment debtor is entitled up to tbe last moment to bave bis exemption set apart before tbe sale, and tbat tbe same right belongs to tbe judgment creditor.

• There having been no levy, and tbe allotment not having been made at all, and it not appearing tbat tbe defendant was given tbe opportunity to select tbe articles, tbe report was fatally defective and should have been set aside.

It should be noted tbat there is a material difference between tbe allotment of tbe homestead under Eevisal, 687, which must be done “before levying upon tbe real estate,” and as to which tbe levy must be only upon tbe excess (Eevisal, 692), an(d tbe allotment of tbe personal property exemption, for tbe personal property must be levied upon, tbat is, taken in possession by tbe officer, and tbe personal property exemption is then allotted in tbe manner provided by Eevisal, 695.

Tbe homestead exemption is permanent unless there is a reallotment-by reason of an increase in value in tbe manner provided by Eevisal, 691. But tbe personal property exemption is to be reassigned, whenever, at subsequent dates, executions are levied. Tbe reason is tbat tbe realty is fixed and stable, whereas tbe articles of personal property may be increased or diminished in quantity, between tbe levy of executions, especially so as to articles of food which are usually included in such exemptions.

Tbe report of tbe appraisers should bave been set aside and tbe sheriff should proceed to levy bis execution, and tbe personal property exemption must be allotted out of tbe personal property in tbe bands of tbe defendant at tbe time of such allotment, tbe articles being selected by tbe defendant as provided by Tbe Code. In Campbell v. White, 95 N. C., 344, it was held: “Though tbe debtor’s personal property exemption has been duly allotted, whenever it has been diminished by use, loss, or other cause, be has a right to bave any other personal property be may bave exempted up to tbe prescribed limit,” Smith, C. J., saying tbat tbe Constitution, Art. X, sec. 1, is a continual mandate to tbe officer to leave so much of tbe debtor’s personal estate untouched for bis use, and, of course, tbe diminution from use, loss, or other cause must be replenished with other, if the debtor has such, up to the prescribed limits. It is plainly meant that when any final process against the debtor’s estate is to be enforced, that much of his estate must- be allowed to remain with him as not liable to sale.”

Reversed.  