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JOYNER v. SUGG.

ner's) homestead rights therein as secured by the laws of North Carolina.' After due advertisement according to the terms of the trust, the land was sold 'subject to the reserved homestead right of Blaney Joyner,' and was bought by R. L. Davis, with whom Blaney Joyner had arranged that it should be bought for his benefit, and the deed therefor was made by Allen Warren, trustee, to said Davis, 'subject to the homestead right of Blaney Joyner,' and coupled with a parol trust to convey the same to whomsoever Blaney Joyner might direct, and by direction of Blaney Joyner, said Davis conveyed the land, 'subject to said Blaney Joyner's homestead right,' to his wife, J. A. E. Joyner. Blaney Joyner and his wife united in a mortgage to secure to said Davis the payment of the purchase money, which was subsequently paid off by Mrs. Joyner after the death of her husband, as appears by the testimony of W. G. Lang at page 22 of the record. Blaney Joyner died without issue and the plaintiffs are his heirs at law. J. A. E. Joyner died subsequently in 1901, having devised the land to her nieces, the defendants, who are in possession of the premises."

It was held by this court (Joyner v. Sugg, 131 N. C., 324) that there was no parol trust created by Mrs. Joyner and that the parol trust raised by the agreement between R. L. Davis and Blaney Joyner was performed by the execution of the conveyance of Davis to J. A. E. Joyner, as directed by Blaney Joyner, so that the question as to the trust is now out of the case, and we have only to determine whether the deed of trust and the subsequent deed of the trustee to Davis and of Davis to Mrs. Joyner vested in her the title to the land described in the deeds, subject only to the right of Blaney Joyner to have and occupy a part of the land to the value of $1,000, exempt from sale under execution for the time fixed in the Constitution, or whether the deeds conveyed all of said lands except the part subject to the exemption, the said part

JOYNER v. SUGG.

being so excepted from the deeds as that no interest whatever therein vested in Mrs. Joyner. In other words, does the Constitution forbid the sale of the land itself allotted as property which shall be exempt from sale under execution without the joinder of husband and wife in the deed and the privy examination of the wife thereto, or does it merely prohibit any conveyance without such joinder and privy examination, which will transfer or convey this right of exemption, leaving the husband free to convev all other interests he may have in the excepted part to take effect in possession when the exemption has ceased?

We unhesitatingly adopt the latter construction as the one which was clearly contemplated by the framers of the Constitution, which has met with legislative sanction, as we shall hereinafter show, and which has been uniformly adopted by this court until this case was decided at the last term.

It is provided in Article X of the Constitution as follows: "Sec. 2. Every homestead and the dwellings and buildings used therewith, not exceding in value one thousand dollars, to be selected by the owner thereof, or in lieu thereof at the option of the owner, any lot in a city, town or village, with the dwellings and buildings used thereon, owned and occupied by any resident of this State and not exceeding the value of one thousand dollars, shall be exempt from sale under execution or other final process obtained on any debt. But no property shall be exempt from sale for taxes, or for payment of obligations contracted for the purchase of said premises.

"Sec. 3. The homestead, after the death of the owner thereof, shall be exempt from the payment of any debt during the minority of his children or any one of them.

"Sec. 5. If the owner of a homestead die, leaving a widow but no children, the same shall be exempt from the debts of her husband, and the rents and profits thereof shall

JOYNER v. SUGG.

enure to her benefit during her widowhood, unless she be the owner of a homestead in her own right.

"Sec. 8. 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 a homestead shall be valid without the voluntary signature and assent of his wife, signified on her private examination according to law."

It is perfectly obvious from a bare perusal of these sections that the sole object of the framers of the Constitution was, not to set apart property which should not be sold by the owner, but to exempt the property from execution and thereby put it beyond the reach of creditors for the time specified. Their only care and solicitude were to protect him who had been or might be overtaken by misfortune, and to save his family from utter impoverishment and destitution. They did not intend to tie the hands of the head of the family so that he could not dispose of his property, as they well knew that the jus disponendi would always be one of the most valuable qualities of the estate, but it was their purpose to bind the hands of the creditor so that he could not lay them upon the exempted property of the debtor in the time of his adversity and to suspend his right to proceed against that property for the satisfaction of his claim during the period of exemption. This constituted their chief and indeed their only aim and purpose, and it was never intended that this humane and beneficent provision of the organic law should be so interpreted as to take away from the owner of the right of exemption any part of his almost equally valuable right of alienation.

The framers of the Constitution meant exactly what they said and ordained, that a certain part of the real property of the debtor should be set apart for his use and occupation, where he might dwell with his family in peace and content

JOYNER v. SUGG.

ment without any creditors to molest or make him afraid, so long as he might live, and to extend the benefit of the exemption to the wife during her life, if there should be no children of the marriage, and if there were children, then during the minority of the children or any one of them. The leading idea, if not the only one, was to create an exemption and not an estate, and an exemption too for a limited period, leaving the estate, which the debtor already had in the land, unimpaired. We have said that no new estate was created, for we are told that an estate is the interest which the tenant has in his land, and no interest has been created here, but merely a right of exemption or a privilege of protection against creditors, leaving the debtor at full liberty to deal with his estate at his own free will, provided he does not alien this right of exemption or interfere with its enjoyment without the consent of his wife to be signified in the manner prescribed.

We find therefore that as regards the property allotted for the purpose of exemption, the debtor acquires no new right, interest or estate in it or to it, as he is supposed already to have the entire estate, but something collateral to it; and if this something, which we may call a right of exemption or a determinable right of exemption or a quality annexed to the land whereby it is exempted, is preserved to him and his family intact, he may convey or transfer his estate or interest in the land, as he could do if this right did not exist, without infringing upon any provision of the Constitution.

The land is his and he holds it with all the rights and incidents of ownership, among which stands pre-eminent the right of alienation as essential to his power and dominion over it, and the law makers could not have intended to put any restriction upon this right, for it would be against the policy of the law to do so, except in so far, and only in so far, as it might be necessary to protect the owner against his credi

JOYNER v. SUGG.

tors. If he does not interfere with the right of exemption, why may he not do with his own as he pleases in all other respects, and why may he not sell and convey without the joinder of his wife all of his interest in that which it is not necessary for him to keep in order to secure to himself and his family the full enjoyment of this right of exemption? When it is admitted to be a mere determinable right of exemption, as we understand it is in the opinion of this court delivered at the last term, the result we have reached, and not the one stated by the court in that opinion, is, we think, the natural and inevitable conclusion that follows from the admission. The true idea is well expressed by the court in Hughes v. Hodges, 102 N. C., 236: "The jus disponendi is a vested right and protected by the Constitution and is restricted only by provisions for dower and homestead, which restrictions must be so construed as to carry out the kindly purpose for which they were created, with no more restriction of the power of alienation than is necessary to make them effectual."

We have thus far stood upon "the reason of the thing" and the letter and spirit of the Constitution. But if there can be any doubt or uncertainty in regard to this matter, why may we not call to our aid the interpretation placed, impliedly, at least, upon this constitutional provision by the Legislature? It was provided by the Act of 1869-'70, Ch. 121, Sec. 1 (Battle's Rev., Ch. 55, Sec. 26), "That it should not be lawful to levy upon or sell under execution for any debt the "reversionary interest" in any lands included in a homestead until after the termination of the homestead interest therein." While the words "reversionary interest" are here used to describe a right which the owner has in the land subject to the determinable exemption, and were inappropriate in a technical sense for that purpose, because the homestead is not an estate and the interest or estate of the

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