HITCH v. COMMISSIONERS. or by not taking advantage of the defect in some proper way, and the defective pleading is aided and the necessary averments will be supplied by the law. This very question was decided in Garrett v. Trotter, 65 N. C., 430, which was an action to recover land. The plaintiff in that case failed to allege that the entry was unlawful or wrongful, and this court held that the defendant by answering or by not demurring, waived the defect, and under the doctrine of aider the plaintiff might proceed in the case as if the pleading had been correctly drawn. In the case at bar, the defendant did not by demurrer point out the defect, and, if the complaint is not sufficient in its present form, under the liberal provisions of our present system of pleading, to constitute a good statement of a cause of action for trespass, it has become so by reason of the aid derived from the defendant's pleading. It is to be observed that not only do the defendant's not take advantage of the supposed defect in the complaint, namely, that it is not alleged that the entry was unlawful or wrongful, but they expressly waived the defect, if there is any, and elected to treat the second cause of action in the complaint as one for trespass. It comes, then, to this, that the plaintiff has sued the defendants in their corporate capacity for an unlawful entry and trespass upon their land, or rather upon the land of the plaintiff company, and demand that they recover damages for the same. The plaintiff either alleges a trespass in the second cause of action, or no cause of action at all is alleged. If the defendants entered unlawfully and wrongfully upon the land, it was a trespass; and if they entered lawfully, they are not liable to the plaintiff for any damages. If no cause of action is alleged the demurrer was properly sustained, and if the plaintiff alleges a cause of action for trespass the judgment of the court was also right, because this court has recently held that counties can not be sued for trespass upon HITCH v. COMMISSIONERS. land or for the commission of any other tort in the absence of a statutory provision giving a right of action against them in such cases. This is no new principle, as will appear by reference to the cases cited in the opinion of this court. The reasons for the doctrine are therein fully and clearly set out and need not be repeated. Jones v. Commissioners, 130 N. C., 451. The plaintiff does not allege that there has been any condemnation of the land for the purpose of constructing a public road and an assessment of damages, which by the statute (The Code, Sec. 2040) are made a County charge. If the County authorities have taken the land of the plaintiff company for public purposes, it should be compensated, but in the way pointed out by the law. If there has been a condemnation of the land, the plaintiff can recover the amount assessed in its favor and, if the defendants have entered upon the land without authority of law, the members of the Board are individually liable for their wrongful acts. In any view of the case, as now presented to us, we think the judge below was right in sustaining the demurrer. MONTGOMERY, J., concurring in result. It is difficult for me to understand from a reading of the complaint the grounds upon which the plaintiff relies to recover the judgment which he demands. Two causes of action are set forth. In the first, there are allegations that the plaintiff was the owner of two small tracts of land near Tarboro and that the chairman of the defendant Board of Commissioners inquired of the plaintiff if he would sell the same, and for what price; that the plaintiff answered the inquiry stating that $700 was the price asked for the land; that the defendant made no reply and not long thereafter they went upon the land and constructed a highway across and through it. There was Vol. 132-37 HITCH COMMISSIONERS. then a prayer that the defendants "comply with their said agreement as hereinbefore stated and pay said sum, which was refused," the plaintiff alleging at the same time that "he was ready, able and willing to convey a clear title for said land to the said defendants for the price named and agreed upon." The second cause of action is stated in the following words: 1. That the said defendants entered upon and took possession of the said two parcels of land hereinbefore described and set out. 2. That said tracts of land lie adjoining and they contain about three-quarters of an acre; that said defendants dug up said land and took the earth therefrom, causing deep, dangerous and unsightly holes in it. The earth so removed was used in constructing an embankment about twenty-five feet wide at the top and about twelve to fifteen feet high, on and across said land, on which the defendant opened a highway; that said land is destroyed and rendered useless for any practical purpose by reason of the construction and presence of said highway. There followed a prayer for damages for $700. The defendants demurred to both causes of action. The demurrers were sustained by the court below. There was no appeal from the judgment on the demurrer in the first cause of action. The ground upon which the demurrer to the second cause of action was interposed was stated by the pleader to be that "the facts stated therein (the complaint) do not constitute a cause of action in that a trespass upon the lands described in the complaint is alleged, for which trespass no statutory right of action is alleged, or exists." It looks to us that the complaint does not contain an allegation of trespass upon the part of the defendants. The allegation is that they entered upon the land and built upon it a highway, that is, a public road. There is no allegation that they entered un HITCH v. COMMISSIONERS. lawfully upon the land and built and opened the highway. The County Commissioners of Edgecombe, under Chapter 50 of the first volume of The Code, were authorized to have laid out and constructed public roads and highways. The particular manner in which they should act is set forth in that Chapter of The Code. The allegation having been made in the complaint that the defendants had laid off a public road over the plaintiff's land the presumption would be that they proceeded according to law, that there was a petition for the laying off of the road, the appointment of commissioners for that purpose, the action of the commissioners, their report, and compensation ordered by the defendants. Such proceedings on the part of County Commissioners are entirely judicial, and there is a presumption that everything was done in an orderly and proper method. As we have said, the complaint does not state that the defendants unlawfully entered the plaintiff's possessions and without authority of law condemned them to the public use; and it would indeed appear strange if such a thing should have been done. It seems to me, therefore, that it ought not to be concluded that the defendants have acted in such a manner without a direct allegation to that effect. It may be that condemnation of the plaintiff's land for public purposes has been made, and that the compensation fixed by the commissioners was not satisfactory to the plaintiff. If so relief can not be had in the present action. The demurrer may have been sustained on the wrong ground, but it can be seen from the complaint that the plaintiff has stated no cause of action and the same should be dismissed. JOYNER v. SUGG. JOYNER v. SUGG. (Filed May 5, 1903.) HOMESTEAD-Exemptions-Trust Deeds-Husband and Wife-The Consti tution, Art. 10, Secs. 2, 3, 5, 8. A deed in trust by the husband, in which the wife does not join, reserving the homestead of the grantor therein conveys the entire land contained in the deed of trust, subject only to the determinable exemption in $1,000 worth thereof from the payment of the debts of the grantor during his life. PETITION to rehear this case, reported in 131 N. C., 324. Petition granted. Jarvis & Blow, for the petitioner. WALKER, J. This is a petition to rehear and review the judgment of this court rendered at the last term in the above entitled case. It involves a matter of the greatest importance, as it relates to the ever recurring question of the extent of the homestead right, and requires us to declare and decide what is the nature and characteristics of that creature of the Constitution known as the homestead, and what right in or control or dominion over it the owner has and enjoys under the terms of the instrument by which it was brought into existence. The facts in regard to this particular case-as we gather them from the record-are those stated by the court in the prevailing opinion delivered at said term, with slight modification, not now perhaps material to be considered in connection with the question to be discussed and decided on the rehearing, and are as follows: "Blaney Joyner in 1893 executed a deed of trust to Allen Warren to secure creditors, in which was included the land in controversy, which was conveyed 'subject to and reserving, however, his (Blaney Joy |