The ground on which it was argued in this court that the judgment of the supreme court of North Carolina should be reversed was that the debt, in execution of the judgment upon which the land was sold to the plaintiff, having been contracted before the constitution and laws of the state exempted a homestead from execution, the obligation of the contract was impaired by the statute of North Carolina, by which, as construed by the supreme court of the state, such a creditor is obliged to levy his execution, first, by sale of so much of the debtor's land as is not within the homestead exemption, and afterwards, if necessary, by separate sale of tue rest of the land.
But the difficulty is that it does not appear that any objection to the constitutionality of the statute was taken by the plaintiff in the courts of the state. On the contrary, he appears to have assumed that the statute was constitutional and valid; and that, if the land, at the time of the sale on execution in June, 1879, was not worth the sum of $1,083, made up of $1,000 for the homestead, and $83 for the amount of the judgment, he could not recover.
At the trial, after proving his title under the sale on execution, he himself introduced, against the objection and exception of the defendant, evidence that the lands were worth less than that sum. The only instructions which the plaintiff asked, and to the refusal of which he excepted, were the specific one 'that there was no evidence that the defendant's [apparently meaning the defendant's lands] were worth' that sum, and the general one 'that, upon the whole evidence, the plaintiff was entitled to recover.' The instructions given were not excepted to, and it does not appear for what supposed error in them a new trial was moved for and refused. The plaintiff, therefore, up to the time of judgment in the trial court, does not appear to have insisted that the levy under which he claimed was valid if the estate was worth more than the sum aforesaid, as the jury found that it was.
Nor does it appear that he brought any constitutional question before the supreme court of the state. No reasons of his appeal to that court are stated in the record; and the official report of its opinion shows that no counsel for the plaintiff argued the case before that court. 101 N. C. 332, 335, 7 S. E. 795. Under these circumstances, the fact that in that opinion the construction and validity of the statute were treated as settled by the ruling in the earlier case of McCanless v. Flinchum, 98 N. C. 358, 4 S. E. 359, and were restated by way of explanation of the defense at the trial of the present case, fall short of showing that there was any real contest at any stage of this case upon the point.
In order to give this court jurisdiction of a writ of error to review a judgment of the highest court of a state, on the ground that it decided against a title, right, privilege, or immunity claimed under the constitution or a treaty or statute of the United States, such title, right, privilege, or immunity must have been 'specially set up or claimed' at the proper time and in the proper way. If it was not claimed in the trial court, and therefore, by the law and practice of the state, as declared by its highest court, could not be considered by that court, or if it was not claimed in any form before judgment in the highest court of the state, it cannot be asserted in this court. Rev. St. § 709; Spies v. Illinois, 123 U.S. 131, 181, 8 Sup. Ct. 21; Brooks v. Missouri, 124 U.S. 394, 8 Sup. Ct. 443; Chappell v. Bradshaw, 128 U.S. 132, 134, 9 Sup. Ct. 40; Brown v. Massachusetts, 144 U.S. 573, 12 Sup. Ct. 757; Bank v. Bollong, 150 U.S. 85, 14 Sup. Ct. 24; Miller v. Texas, 14 Sup. Ct. 874.
The judgment of the supreme court of North Carolina in this case appears by the record to have been rendered on November 14, 1888; and it is perhaps significant that this writ of error was not sued out until September 4, 1890, after that court, in Long v. Walker, 105 N. C. 90, 10 S. E. 858, had changed its opinion as to the validity and effect of the statute.
Writ of error dismissed for want of jurisdiction.
Mr. Justice WHITE, not having been a member of the court when this case was argued, took no part in its decision.
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