Page images


owner in the land is in no way divided up or changed, yet it appears clearly from the Act that the Legislature thought that under the Constitution the owner had a salable interest in the exempted land distinct from the right of exemption. If this is not so, and the land itself or the part of it allotted for the purpose of exemption was in the mind of the Legislature as being that thing which constituted the "homestead," why should it speak of a "reversionary interest," which implies that there is a preceding particular estate or interest, and undertake to protect that "reversionary interest" from sale under final process? It is utterly impossible to conceive that the Legislature, in staying the sheriff's hand until the right of exemption has expired, could have had any other idea than that the Constitution created only a right of exemption which left the land in the hands of the debtor exposed to sale, subject only to that privilege or right of exemption, and the exempted land which was thus liable to be sold was miscalled a "reversion." It expressed the right idea with the wrong word, but nevertheless it placed the unmistakable interpretation upon the Constitution which we have adopted. It would have been idle to protect from sale under execution something that did not exist and could not be sold; and it will not be imputed to the Legislature that it intended to do a vain thing. This court, speaking by Ashe, J., in Adrian v. Shaw, 82 N. C., 474, says: "In this State it is held that the homestead right is a quality annexed to land whereby the estate is exempted from sale under execution for debt, and it has its force and vigor in and by the Constitution." If it was intended by the framers of the Constitution that all of the interest of the owner in the homestead land should be exempted from sale, it was not necessary to pass the Act of 1869-'70, as the Constitution sufficiently protected it."

It was only upon the supposition that there was an interest in the exempted land which was left exposed to sale that made


That statute was remedial

it necessary to pass the said Act. in its nature. The old law was the Constitution, which declared that a certain part of the land should be set apart and to it should be attached a right or privilege of exemption only, thereby rendering it liable to sale subject to that exemption. The mischief was that sales under execution had been and were then being made, which were recognized as valid by the courts and which were considered as injurious to the homesteader, and to remedy this evil the statute was enacted. It was not declaratory, because if the framers of the Constitution intended that "the estate in the land in its entirety should be set apart and exempted", this as we have said was all sufficient without a statute to forbid its sale under execution, as we know that the Constitution does that in express and positive terms.

But let us examine the question in the light of the decisions of this court.

The case of Jenkins v. Bobbitt, 77 N. C., 385, is directly in point and has never been overruled or questioned. It is well to reproduce a part of what is said in that case by Pearson, C. J., for the court: "We think it clear that this section refers exclusively to the disposition of the homestead estate by the owner thereof, and has no reference whatever to any conveyance he may make of his estate in reversion. By the proper construction, this section should read, 'But no deed purporting to dispose of the homestead 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'. Read in this way, there is sense to it; but to make it apply to a disposition of the reversion as well as a disposition of the homestead estate, incurs the censure of the rule haeret in litera, haeret in cortice. . . . . . As the owner of an estate in reversion after a homestead estate had a right to make a voluntary alienation, it follows that his


creditors had a right to have it sold under execution. Hence the necessity for the statute, Bat. Rev., Ch. 55, Sec. 26. If the wife had the power to put a veto upon the sale of the reversion by refusing to give her assent, that act would not have been needed. But such a power on the part of the wife, to object either to the voluntary disposition of the reversion by the husband, or to an involuntary disposition of it by execution, was not then suggested by any one. . . . . A sale by the owner of the homestead of his estate in reversion stands as at common law, and the owner has full power to sell it, or to mortgage it if he desires to raise money on the credit of it. It is his property; why should he not have a right to dispose of it? The right seems to be conceded by his Honor, unless it be restrained by the section of the Constitution upon which we have commented."

The principle of that decision has as we think, been applied by this court in the following cases: Poe v. Hardie, 65 N. C., 447; Hager v. Nixon, 69 N. C., 108; Barrett v. Richardson, 76 N. C., 429; Littlejohn v. Egerton, 77 N. C., 379; Gheen v. Summey, 80 N. C., 187; Murphy v. McNeill, 82 N. C., 221; Adrian v. Shaw, 82 N. C., 474; Wyche v. Wyche, 85 N. C., 96; Grant v. Edwards, 86 N. C., 513; Keener v. Goodson, 89 N. C., 273; Lowdermilk v. Corpening, 92 N. C., 333; Rogers v. Kimsey, 101 N. C., 559; Jones v. Brittain, 102 N. C., 166, 4 L. R. A., 178; Hughes v. Hodges, 102 N. C., 236; Long v. Walker, 105 N. C., 90; Fleming v. Graham, 110 N. C., 374; Bank v. Whitaker, 110 N. C., 345; Davis v. Smith, 113 N. C., 94; Stern v. Lee, 115 N. C., 426, 26 L. R. A., 814; Thomas v. Fulford, 117 N. C., 667; Bevan v. Ellis, 121 N. C.,. 224; Williams v. Scott, 122 N. C., 545.

These and many other cases either directly or indirectly recognize the right of the owner of the homestead-land to sell the same subject to the right of exemption and thereby


to convey what was once called, in default of a better word, the "reversion"; and in several cases it has been said by this court that Article X, Sec. 8 of the Constitution by which it is required that there shall be the signature and assent and privy examination of the wife to any valid deed conveying the homestead, applies only when the exempted land has been actually allotted and set apart to the homesteader. Mayo v. Cotten, 69 N. C., 289; Hughes v. Hodges, 102 N. C., 247.

In Bank v. Green, 78 N. C., 252, this court by Bynum, J., says: "There is some misconception as to the nature of the homestead law. The homestead is not the creation of any new estate, vesting in the owner new rights of property. His dominion over it and power of disposition are precisely the same after as before the assignment of the homestead. The law is aimed at the creditor only, and it is upon him that all of the restrictions are imposed; and the extent of these restrictions is the measure of the privileges secured to the debtor."

"The homestead has been called a determinable fee, but, as we have seen that no new estate has been conferred upon the owner and no limitation upon his old estate imposed, it is obvious that it would be more correct to say that there is conferred upon him a determinable exemption from the payment of his debts in respect to the particular property allotted to him." Ibid.

In Hinsdale v. Williams, 75 N. C., 430, Pearson, C. J., for the court, says: "But a sale by the owner of a homestead of his estate in reversion stands as at common law, and the owner has full power to sell it."

In Ladd v. Byrd, 113 N. C., 466, the court states the principle as follows: "Prior to the passage of the Act of 1870, when the reversionary interest could still be sold under execution, the judgment creditor might at his option recognize the claim of the debtor to a homestead by exposing to sale


only such reversionary interest without affecting the validity of the sale, or in any way impairing the right of the purchaser to possession of the land on the expiration of the prescribed period of exemption. Long v. Walker, 105 N. C., 90; Wyche v. Wyche, 85 N. C., 96; Barrett v. Richardson, 76 N. C., 423. When made expressly 'subject to the homestead', it was held that the sale was valid and 'passed the reversionary interest only"."

In Vanstory v. Thornton, 112 N. C., 116; 34 Am. St. Rep., 483, the court distinctly recognized and applied the principle that the homestead is not a new estate but merely a determinable exemption from the payment of debts, and that the land might be conveyed subject to this right of exemption. "The reversionary interest in the homestead land," says the court, "may be owned by one person, while the homestead interest or estate is held by another"-citing several cases. And again: "The exemptionist may sell the land on which the benefit rests, subject to the judgment, but also protected for the time being by the suspension of the lien." While there was a dissenting opinion in that case, it was upon a question not presented in this case and as to the principle here involved the justices were unanimous.

In Williams v. Scott, 122 N. C., 545, the court says: "A sale of the reversionary interest in land by an assignee in bankruptcy, in which a homestead has been allotted, is fully recognized in our courts. Windley v. Tankard, 88 N. C., 223; Murray v. Hazell, 99 N. C., 168. The laws of North Carolina prohibit a sheriff from selling the reversionary interest in homestead lands under execution, but they do not prevent the homesteader himself from conveying it. Jenkins v. Bobbitt, 77 N. C., 385."

In Thomas v. Fulford, 117 N. C., 667, there was a wide divergence of views developed, but no principle theretofore established by the court in regard to the right of exemption

« PreviousContinue »