Cawfield v. Owens

• Decision Date: 10 June 1902
• Citation: 41 S.E. 891,130 N.C. 641
• Court: North Carolina Supreme Court
• Parties: CAWFIELD v. OWENS.

41 S.E. 891

130 N.C. 641

CAWFIELD

v.OWENS.

Supreme Court of North Carolina.

June 10, 1902.

HOMESTEAD—SHOWING UNDER GENERAL, DENIAL—CONVEYANCE—WIFE'S SIGNATURE—NECESSITY.

1. In a suit against a husband and wife for possession of land, where plaintiff claims under a deed from the husband, the wife may show a homestead right under her general denial, no special plea being necessary.

2. The constitution exempts from forced sale every homestead not exceeding $1,000 in value, which is to be selected by the owner, and provides in article 10, § 8, that no deed made by the owner of a homestead shall be valid without the voluntary signature and assent of the wife. Held, that while one in debt may convey his land without the signature of his wife, though no homestead has been allotted, where there was a judgment against a husband under which execution might have issued, his conveyance without the wife's signature was void, though there had been no allotment of homestead.

3. The subsequent expiration of the lien of the judgment did not render the conveyance valid.

Appeal from superior court, Rutherford county; Justice, Judge.

Action by Sarah Cawfield against Amos Owens. From a judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff, Sarah Cawfield, commenced this action on the 11th day of May, 1893, to recover possession of two certain tracts of land described in the complaint, one known as the "Covington tract" and the other known as the "De Priest land." Her claim to the land is founded on a deed executed to her by Matt McBrayer, mortgagee, the mortgage having been executed on the 10th of November, 1887, by Amos Owens, the owner of the land, his wife, Mary Owens, not having joined him in its execution. At the time of the execution of the mortgage, there was a large judgment against the mortgagor docketed in the superior court of his county, where the land was situated. The Covington tract was conveyed to Amos Owens in September, 1868, and he became the owner of the De Priest land in 1854. The complaint was in the usual form in such actions, and the answer of the defendant Mary, the defendant Amos having withdrawn his answer, was a simple denial of its allegations; she having withdrawn that part of her answer which set up a resulting trust in the land. On the trial the defendant was allowed, over the plaintiffs objection, to introduce evidence tending to show that the entire real estate of Amos Owens at the time of the execution of the mortgage was worth less than $1,000. The plaintiff requested the following instructions: "(1) That if the jury believe the evidence, the plaintiff was the owner of both tracts of land described in the complaint. (2) That the joinder of the wife in the mortgage to R. and M. McBrayer was not necessary, she only having an inchoate right of dower in said land contingent upon her surviving her husband. (3) That, the defendant husband being estopped by his mortgage deed, the feme defendant could not set up a claim to homestead in the Covington tract of land without alleging and proving there were minor children of the defendants. His honor instructed the jury that if they believed the evidence the plaintiff was entitled to recover the De Priest tract, but was not entitled to recover the Covington tract" To this instruction, in so far as it related to the Covington tract, the plaintiff excepted. The jury found that the plaintiff was the owner of the De Priest tract, and that the possession of the defendant of that tract was wrongful. From the judgment rendered on the verdict, the plaintiff appealed as to the Covington tract

McBrayer & Justice, for appellant

Justice & Pless, for appellee.

MONTGOMERY, J. (after stating the facts). Was it necessary for the defendant in her answer to have specially pleaded her claim in the land as her homestead interest?

If so. the evidence offered and received was irrelevant and incompetent. The rule under the code pleading (similar to that under the old proceedings in ejectment) permits under the general issue—general denial—proof that a deed...