Hughes v. Hodges

• Decision Date: 25 March 1889
• Citation: 9 S.E. 437,102 N.C. 262,102 N.C. 236
• Court: North Carolina Supreme Court
• Parties: Hughes et al. v. Hodges.

9 S.E. 437

102 N.C. 236

102 N.C. 262

Hughes et al.

v.Hodges.

Supreme Court of North Carolina.

March 25, 1889.

Homestead—Conveyance before Allotment— Wife not Joining.

1. Const. N. C, after exempting from forced sale "every homestead, and the dwelling and buildings used therewith, not exceeding in value $1,000, to be selected by the owner thereof, " provides (article 10, § 8) that nothing contained in the foregoing sections of this article shall operate to prevent the owner of a homestead from disposing of the same by deed; but no deed made by the owner of the homestead shall be valid without the voluntary signature and assent of his wife, signified on her private examination, according to law. Held, that a land-owner who is not in debt may, by deed absolute or by mortgage, convey his land that has never been allotted to him as a homestead, without the joinder of his wife in the deed, free from any restriction growing out of the provisions of article 10, § 8, whether his land was acquired or his marriage was celebrated before or after the adoption of the constitution of 1868.

2. When the grantor seeks to have a conveyance in which his wife has not joined declared void, under article 10, § 8, he must show (1) that a homestead had, prior thereto, been allotted to him in the land conveyed, as provided by law; or (2) that there was an unsatisfied judgment constituting a lien upon the land when conveyed, and upon which an execution might still issue, and make it necessary to have his homestead allotted, or a mortgage reserving an undefined homestead, and constituting a lien that could not be enforced without allotting a homestead in the land, or (3) that the conveyance was void because executed with intent to defraud creditors, and that the grantor did not already have a homestead allotted in other lands.

Merrimon, J., dissenting.

This was a civil action, heard before Graves, J., at the spring term, 1888, of the superior court of Northampton county. The plaintiffs are the executor and heirs at law of Samuel Calvert, On the 8th of January, 1876, defendant executed three notes of that date, but falling due in one, two, and three years after date, payable to said Samuel Calvert, and at the same time executed to said Calvert also a mortgage deed conveying 35 acres in Northampton county to secure the payment of said notes. This action was brought to foreclose. At the time when the defendant executed the mortgage deed, (8th January, 1876,) he owned no other land except the tract conveyed in said deed, and another tract of two acres, both of which together are not worth $1,000. The defendant acquired title to one undivided half interest in said land in the year 1865, but did not become the owner of the other half until the——day of——, 1876. The defendant was first married in 1873, and his first wife was living on the 8th of January, 1876, but did not join in the execution of the deed. She died in the year 1881, and he married a second wife in the year 1882. This action was brought in June, 1879, after the last of said notes became due. The defendant contended that the deed, or writing purporting to be a deed, executed by the defendant on the 8th of January, 1876, was void as a conveyance, and that no interest in said land passed by said deed. The plaintiffs insisted, on the other hand, that the deed was valid without the joinder of the wife in its execution, and vested the title to the whole of said land in fee-simple in Samuel Calvert, subject to the trusts set forth therein. The court adjudged that the defendant, and all persons claiming under him, be "foreclosed of all equity of redemption in and to the reversion in the land mentioned in the complaint, " after the termination of the homestead estate, and ordered that a commissioner sell the reversion unless the debt adjudged to be due from defendant should meantime be discharged. Both plaintiffs and defendant appealed, and both cases are considered together, the appeal of plaintiffs being first in order.

T. W Mason, for plaintiffs. B. B. Peebles, for defendant.

Avery, J., (after stating the facts as above.) When we approach the consideration of the question whether the organic law or the statute law shall be so construed as either to preserve unimpaired, or to greatly restrict, the right of the citizen to aliene his own land, it is wise to recur to the fundamental principles embodied in our state and national constitutions, or to the elements of the common law, that have proven consistent with the genius of our institutions. Every citizen has the right to enjoy the fruits of his own labor, and, when his earnings are invested in land, the rule is that he acquires with the title the incidental right of absolute and unrestricted alienation. The few instances in which the law has trammeled the citizen in the exercise of this power in order to reach some beneficent end are the exceptions that establish instead of destroy the rule. The jus disponendi, subject only to the exceptions mentioned, is a vested right, protected even against hostile state legislation by that clause of the constitution of the United States which prohibits the enactment of any law impairing the obligations of a contract. Bruce v. Strickland, 81 N. C. 267. In our declaration of rights, (Const, art. 1, § 31,) more than a century since, perpetuities were coupled with monopolies, and denounced as "contrary to the genius of a free state." This was followed by the act, passed in the same spirit, which converted a fee-tail estate in its very inception into a fee-simple, with the incidental right to sell, and with the avowed object of attaching the absolute jus disponendi to the estate created. It has been repeatedly declared to be sound public policy to remove every obstacle to the ready sale of real estate upon the market, in order to benefit commerce, and thereby promote general prosperity. It was in furtherance of this object that our general assembly, but a few years since, so altered our registration laws that persons proposing to purchase lands could be well advised as to the titles by a careful inspection of the public records. This leading purpose is subordinated, however, to two wise provisions for the protection of women and children, —dower, a creature of the common law; and the homestead, which is imbedded inorganic law; but, while the humane exemption clauses of the constitution have found favor with the courts, they have been carefully so construed as to carry out the kindly purpose for which they were created, but to restrict alienation only so far as is necessary to effectuate that object. If we will bear in mind, in the progress of this discussion, how essential to the protection of the rights of the citizen, and how important to the promotion of commercial prosperity, it is to guard well the right of alienation, and to restrict it only so far as is necessary in order to extend the blessings of a homestead to those for whose support it was intended, we will find it a beacon light to guide us safely through the mazes of conflicting authorities, emanating from more than a score of appellate courts, when the true way to steer through the sea of doubt and perplexity might otherwise be obscure.

What was the legislative intent in enacting laws providing for the exemption of homestead and fixed amounts in value of personal property from sale under execution? A few definitions of a homestead given by the different courts of the Union will show what they have declared was the object of the law-making power in creating them. The homestead law was called by the supreme court of California "A beneficent provision for the protection and maintenance of the wife and children against the neglect and improvidence of the father and husband." This court has declared that the purpose was to provide every man a home for his wife and children. Jacobs v. Small wood, 63 N. C. 113. We must acknowledge that there is some apparent conflict between Adrian v Shaw, 82 N. C. 476, and the authorities there cited, — Gheen v. Summey, 80 N. C. 190, and Lambert v. Kinnery, 74 N. C. 348, on the one hand, and the case of Hager v. Nixon, 69 N. C. 108, and Mayho v. Cotton, Id. 289, on the other; and the inconsistency of these authorities as to the true interpretation to be given to section 8, art. 10, must be removed, either by modifying the abstract rule laid down in Adrian v. Shaw or by directly overruling the plain principle announced in Mayho v. Cotton, as the only safe solution of all the cases that might depend upon the true meaning of the restriction contained in said section. In Gheen v. Summey the court say: "It is settled by the construction of this court that the homestead right is a quality annexed to land whereby an estate is exempted from sale under execution for a debt, and it has its force and vigor in and by the constitution, and is in no wise dependent on the assent or action of the creditor. And therefore it results, as has been expressly held, that the action of the sheriff in assigning the same by metes and bounds is not needed to any extent to vest the title, but merely as finding the quantum so as to enable him to ascertain the excess, if any, and levy on and sell it." The only question that arose out of the facts of that case was whether a previous appeal by the judgment creditor to the township board of trustees, (under Battle, Revisal, c. 55,) to have a new allotment of homestead, which allotment was made, estopped the creditor from selling the homestead afterwards to satisfy a debt created before 1868, the creditor having sold the excess previously, and soon after allotment. Only the constitutional construction established by Edwards v. Kearzey, 96 U. S. 595, was involved in that case, and therefore the definition of the homestead given was an obiter dictum. So much of the definition as is taken from Littlejohn v. Eg-erton, 76 N. C. 468, and 77 N. C. 379, is not inconsistent with the principle...