JOYNER . Sugg.

was overruled or even modified. There was a concurrence in opinion of three of the justices to the effect that a valid sale could be made by the husband of the land allotted as a homestead without the joinder of his wife, subject to the right of exemption, though it was decided that, upon the special facts of that case, a good title could not be made; this resulted from the opinion of Clark, J., that the right to a homestead was a mere "stay of execution", which is personal to the owner of the land and also inalienable. In other respects he concurred with Montgomery and Avery, JJ., and had it not been for his view of the law in the respect indicated, which does not affect the matter under consideration in this case, the judgment in that case would have been the reverse of what it was. Viewed in this light, the decision is a direct authority in favor of the defendant's contention in the case at bar.

In Hughes v. Hodges, 102 N. C., 247, it is said: "Neither is it material that the wife of the defendant did not by deed assent to his receiving a homestead in the Swamp Place. Section 8, Article X, of the Constitution applies only to a conveyance of the homestead after it is laid off." Mayo v. Cotten, 69 N. C., 294. The court in Hughes v. Hughes, supra, clearly recognizes the right of the owner of the land to convey it subject to the right of exemption without the joinder of his wife (page 245).

It is not necessary to hold that there is no reversionary interest or nothing substantially equivalent to it for the debtor to sell, as his right of exemption can be fully protected and preserved without such a holding.

In Scott v. Lane, 109 N. C., 154, it appeared that at the time two mortgages on land, which was of less value than $1,000.00, were made, the mortgagor was married, that he acquired the land in 1869, that he and his wife lived upon the land and they had no children, and that he owed no debts

JOYNER v. SUGG.

except those mentioned in the mortgages. The mortgages were foreclosed and the purchaser sued the mortgagor for possession. It was held that the purchaser acquired a good title as against the defendant, subject only to the wife's contingent right of dower, although she had not joined in the mortgages, and that he was entitled therefore to recover the land. The case is directly in point, and it is impossible to distinguish it from our case.

The case of Markham v. Hicks, 90 N. C., 204, was relied on as an authority sustaining the conclusion of the court at the last term, but the Chief Justice did not think that it was in point or at least not sufficient for that purpose. In referring to that case he said: "While the court recognizes that the homestead is not an estate, it seems to me that it fails to recognize the results that follow from the changes in its opinion." What is stated in Markham v. Hicks, supra, in reference to the homestead is utterly inconsistent we think with the decision in Murphy v. McNeill, 82 N. C., 221, and was directly repudiated by the court in Ladd v. Byrd, 113 N. C., 468. See also in the same connection the strong language of the court in Jones v. Brittain, 102 N. C., 183, 4 L. R. A., 178, citing Jenkins v. Bobbitt, 77 N. C., 385 and Littlejohn v. Egerton, 77 N. C., 379. In that case the court takes a view of the Act of 1870, forbidding the sale of "reversionary interests", differing widely from that expressed by Smith, C. J., in Markham v. Hicks, supra.

The argument that if the owner of the land is allowed to sell subject to the right of exemption, the property would not bring much and would be bought only by speculators and result in a sacrifice to the homesteader, could apply, if at all, only to forced sales made under execution or other final process, and not to voluntary sales; for in the latter case, the owner can sell for his own price or refuse to sell at all. He has the power to make his own terms. Therefore, what is

JOYNER v. SUGG.

stated in the opinion of the court at the last term in regard to such sales can have no application to this case. When the argument was used by Dick, J., in Poe v. Hardie, 65 N. C., 447, and by Reade, J., in Hinsdale v. Williams, 75 N. C., 430, they were speaking with reference to the Act of 1870 and referring only to forced sales.

In Bank v. Green, 78 N. C., 252, Bynum J., says: "The court should not listen to an argument based upon advantage to the debtor or be influenced by considerations of benefit to him, but should construe the law as it is written. The courts cannot by judicial legislation even do so bold a thing as to confer new rights and exemptions in the face of plain legislation by the law making power. . . . . Such an argument should not be addressed to a court which cannot make, but only construe and administer the law as it is written. If worthy of consideration, it should be directed to the legislature as a reason for changing the law."

We cannot understand why a conveyance of land subject to the owner's right of exemption should not be permitted to have full force and effect and to convey all the interest he has in it, subject only to his right to use and enjoy it during the period of the exemption. This is all that the Constitution secures to him, and every principle of law and public policy requires that his right of alienation should be as little hampered as possible.

But we have said and we now repeat that the prohibition of Sec. 8, Article X, of the Constitution, against the conveyance of the husband without the voluntary signature and assent of the wife, to be signified by her privy examination, was not intended to become effective until the homestead is actually allotted to the owner of the land. It is provided by that section that no owner of a homestead shall convey it without the assent of his wife and this necessarily implies that there has been an actual allotment, as no one can be said to be the owner Vol. 132-38

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of that which does not exist. The right to the homestead always exists and is guaranteed by the Constitution, but the homestead itself cannot come into existence until it has been "selected by the owner" of the land and actually allotted and thereby identified as his homestead. Mayo v. Cotten, and Hughes v. Hodges, supra.

This very question was involved in Hager v. Nixon, 69 N. C., 108, and the meaning of the words of the Constitution "owner of a homestead" as used in the several sections above quoted, was clearly defined. In that case the husband died without owing any debts and without having had any homestead set apart to him. His wife and minor children applied for the allotment of a homestead and the court decided that Section 5, by which it is provided that "if the owner of a homestead die leaving a widow" she shall have the benefit of the homestead during her widowhood, meant that the homestead must have been allotted to the husband and he inust in that way have become the "owner of a homestead" before she could have the benefit of it. "It is implied," says the court, “that the ancestor had been the owner of the homestead, by which, in this connection, must be meant a part of his property set apart and designated as exempt, and not merely land occupied and owned by him." Ibid, p. 110.

The words "owner of a homestead," are used in Section 8, by which the sale of the homestead without the assent of the wife is forbidden, and as the court has said in Hager v. Nixon, supra, that the same words in all of the sections must of necessity receive the same construction, the restraint of alienation imposed by section 8 can apply only to a homestead which has been actually allotted. See also Bruce v. Strickland, 81 N. C., 267. The prohibition of that section cannot, therefore affect this case, as there had been no allotment of the homestead when Blaney Joyner executed the deed of trust to Allen Warren.

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It follows from what we have stated that J. A. E. Joyner acquired a good title to the land in question by the sale and deed to her, subject to Blaney Joyner's homestead right and his determinable right to use and occupy the same exempt from the claims of his creditors, and, this right having expired at his death, the "homestead" right of J. A. E. Joyner merged in the fee simple she acquired by the deed and gave her a good and indefeasible title to the land, which she devised to the defendants. They are, therefore, entitled to the same as against the plaintiffs.

The former judgment of this court is reversed and the judgment of the lower court is affirmed.

Petition Allowed.

Connor, J., having been of counsel did not sit on the hearing of this case.

DOUGLAS, J., dissenting:-Still adhering to the views contained in the opinion of the court as delivered by me at its last term, I am compelled to dissent from the present opinion of the court. Here my dissent would end if the present opinion simply expressed its present views, but as it is in greater part a critical review of the former opinion, I deem it proper to say something further. The opinion of the court speaks of the construction "which has been uniformly adopted by this court until this case was decided at the last term." This alleged uniformity of construction I have been utterly unable to discover. It may exist somewhere, but if so, in a state too intangible for my mental grasp. Perhaps it shares the etherial existence of that quality of exemption which is said to be capable of existing independently of the substance which it qualifies. The case of Thomas v. Fulford, 117 N. C., 667, in which a distinguished member of the Bar wittily said that there were five dissenting opinions, may be cited as an example of uniformity.