Lincoln County NcArchives Court.....A. M. Nixon, Rachel Hager V. 1873
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Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 September 22, 2008, 12:01 pm

Source: Nc Reports
Written: 1873

RACHEL HAGER et al v. A. M. NIXON and wife et al
June Term 1873

A widow cannot, under the Constitution and Act of 1868-69, chap. 137, sec. 10, 
have a homestead laid off for herself and minor children after the death of 
her husband when he died without leaving debts.

This was a CONTROVERSY without action, submitted to his Honor, Logan, J., 
Judge of the Ninth Judicial District, at the last term of LINCOLN Superior 
Court, under the 315th sec. of the C. C. P.

The following is the statement of the controversy and the decision of the 
Judge upon it;

1. John Hager died in Lincoln county in September, 1872, where he resided. At 
his death he was seized in fee of a tract of land in said county, worth about 
five hundred dollars, and no other real estate.

2. A. J. Morrison administered on his estate on the 2d day of September, 1872. 
The time for presenting claims has not yet expired, but as far as known there 
are no outstanding debts against the estate.

3. The inventory of the administrator shows personal property worth about five 
hundred dollars.

4. John Hager in his lifetime did not apply to have his homestead allotted to 
him.

5. John Hager left him surviving, Rachel Hager, his widow, one of the 
plaintiffs, and Ellen Hager, his daughter, aged 13 years, the other plaintiff, 
and Rachel Nixon, wife of A. M. Nixon, one of the defendants, aged 22 years, 
and Jane Hager, a daughter, aged 18 years, who is the other defendant.

6. Rachel Hager, the widow, applies to have the tract of land allotted to her 
as a homestead for the benefit of herself and minor child, Ellen, who lives 
with her and for the other children if they desire it, and this application is 
resisted, and her right to the said homestead denied by the defendants, A. M. 
Nixon and wife, and Jane Hager, who appears by A. M. Nixon, her guardian. 
Rachel Hager is the mother of Rachel Nixon and Jane and Ellen Hager, parties 
to this controversy.

It is agreed that the Judge of this Court shall thereupon hear and determine 
the case, and render judgment therein, as if an action presenting this point 
were depending before him.
                             W. S. BYNUM,
                                Attorney for plaintiffs.
                             D. SCHENCK,
                                Attorney for defendants.

May 1st, 1873.
It is the opinion of the Court that Rachel Hager is entitled to the homestead 
asked for, and that the same be laid off for her according to law.
                              G. W. LOGAN,
                    Judge Superior Court Ninth District.

May 3d, 1873.
From this judgment the defendants prayed an appeal, which was granted.

D. Schenck, for the defendants, contended that the policy and object of the 
Constitution and laws in relation to homesteads applied only to cases of 
persons indebted, and were never meant for the benefit of those who did not 
need them. He cited and commented on Watts v. Leggett, 66 N. C. Rep. 197.

W. P. Bynum, for the plaintiffs argued that the homestead was intended for the 
benefit of the citizen, and that therefore the Constitution and laws relating 
to it should be construed liberally. If a citizen was indebted to ever so 
small amount, say $50 or $100, he would be entitled to a homeatead, and to 
make a distinction between so small a sum, and not being indebted at all, is 
not at all reasonable.


Ruling from NC Supreme Court: RODMAN, J. 

PER CURIAM. Judgment reversed, and suit dismissed.

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