Bruce & Co. v. Strickland

• Decision Date: 30 June 1879
• Court: North Carolina Supreme Court
• Parties: A. T. BRUCE & CO. v. M. STRICKLAND and wife.

81 N.C. 267

A. T. BRUCE & CO.

v.M. STRICKLAND and wife.

Supreme Court of North Carolina.

June Term, 1879.

CIVIL ACTION tried at Spring Term, 1879, of NASH Superior Court, before Seymour, J.

In order to secure the payment of a debt to one John A. Harrison, the defendant executed a deed without the joinder of his wife, conveying a tract of land to him, dated the 20th of January, 1874, which debt was by agreement to be paid in two years from the date of the deed. The land was acquired by the defendant prior to March, 1867, and the debt was contracted subsequent to 1868. The defendant was married in 1847, and his wife is still living. They now live upon the land, and have infant children. No homestead has ever been assigned, nor does the defendant own any other real estate, nor is the land worth more than one thousand dollars. On the 3rd of May, 1877, Harrison for a valuable consideration transferred his debt against defendant and his interest in the land to the plaintiffs who seek in this action to subject the land to the payment of the debt.

The above are the facts, in brief, as found by the referee to whom the case was referred, upon which he concluded, as matter of law, that there is due the plaintiffs the sum of $489.72 and interest; that as against the feme defendant, the deed was ineffectual to deprive her of her homestead right; that the deed conveyed the reversion to take effect in possession after the homestead estate; and gave judgment that plaintiffs recover the debt, also for a sale of the reversionary interest in the land, unless the money is paid in three months after the confirmation of the referee's report.

The plaintiffs excepted to the report, for that, the referee erred in finding as a conclusion of law that the deed was ineffectual to convey the land discharged of any claim of the wife, and that it only conveyed to Harrison a reversionary interest. The court overruled the exception and confirmed the report, from which the plaintiffs appealed.Messrs. Connor & Woodard and H. F. Murray, for plaintiffs :

1. The homestead exemption is intended to be a protection against creditors, and not a disabling statute against the owner. Hagar v. Nixon, 69 N. C., 108. The homestead provisions in the constitution are found in a chapter of “““Exemptions.” “ Noscitur a sociis.” Sedgw. Stat. and Const. Law, 220, note a.

2. If Art. X, § 8 of the constitution, is a disabling statute, impairing or restricting the husband's right of alienation, it is in derogation of his prior rights and should be strictly construed (Sedgw., 296) so as to apply only to homesteads already assigned and thus impliedly dedicated by the husband to the control and veto power of the wife. Mayho v. Cotten, 69 N. C., at page 294, (opinion); Jenkins v. Bobbitt, 77 N. C., 385.

3. Right of alienation an inseparable incident to an absolute estate, and a restriction on this right, even for a limited time, is void for repugnancy to the estate granted. Mandelbaum v. McDowell, 29 Mich., 78; 18 Am. Rep., 61; School Com. v. Kesler, 67 N. C., 443; Twitty v. Camp, Phil. Eq., 61. To submit the husband's right of alienation to the control and restraint of the wife, by requiring her assent to his conveyance, would be to defeat a vested right. Sutton v. Askew, 66 N. C., 177; Cooley Const. Lim., 361.

4. The husband holds under an executed contract (“which differs nothing from a grant,” 2 Bl. Com., 443) and his rights are protected by the clause in the federal constitution against impairing the obligation of contracts. Cooley Const. Lim., 274-'5.

Messrs. Reade, Busbee & Busbee, for defendants :

1. Deed by owner of homestead void unless signed by wife. Const., Art. X, § 8. This is not only for protection of the wife, but in terms a requisite of the deed itself. Nor is Sutton v. Askew in conflict with this; for here, the husband is not insisting upon a vested right of which the legislature had deprived him, but upon an exemption from liability which the legislature had conferred upon him at a time when no one was damaged thereby, the sale being since the constitution.

2. The homestead right is vested by the constitution, and not by the allotments, which only ascertains whether there is an excess. Lambert v. Kinnery, 74 N. C., 348; Allen v. Shields, 72 N. C., 504.

3. Upon the authority of Jenkins v. Bobbitt, 77 N. C., 385, it would be admitted that the sale was good as to the reversion, if it were not that under the first position taken the deed itself is informal and void.

SMITH, C. J.

The defendant was married in the year 1847, and acquired title to the tract of land described in the pleadings prior to March, in the year 1867. He contracted a debt to one John A. Harrison of $500 subsequent to the year 1868, and to secure the same, on the 20th day of January, 1874, conveyed the land to said Harrison, by deed absolute in form and with a contemporary parol agreement between them, that the debt should be paid in two years in redemption of the land. The wife was not a party to the deed, and the defendant owns no other land. No homestead has been laid off to the defendant, and he has infant children living.

On the 3rd day of May, 1877, Harrison, for a valuable consideration, transferred the debt and his estate and interest in the land to the plaintiffs. The debt and interest due on the 25th day of February, 1879, amounts to $589.62, whereof $489.72 is principal money and bears interest from that date. These facts are...