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JOYNER v. SUGG.
The court again says that the framers of the Constitution "never intended that this humane and beneficent provision of the organic law should be so interpreted and misunderstood." Perhaps not. My only way of knowing their thoughts is from their written words.
In the construction of the constitutional provisions creating the homestead, there are two different views, either of which might reasonably be followed; but they are antagonistic. If one is right, the other must be wrong; and it seems to me that the effort to combine these inconsistent principles is the real cause of the confusion that has arisen in the construction of the homestead, and is the vital error in the present opinion of the court. The homestead must be either a mere quality annexed to land or a particular estate carved out of the fee. The very definition of the one excludes the other. A quality in itself has no independent existence, but must remain annexed to the subject which it qualifies. The qualities of a horse are generally considered as including strength, speed, indurance, gentleness and intelligence. The owner cannot sell the horse and still keep these qualities for himself. The qualities must go with the horse or cease to exist. On the contrary, no one would include the mane and tail of a horse among his qualities. They are parts of the horse and can be cut off and separated from the horse. So, if the homestead is a mere quality annexed to land, it must remain with the land; but if it is a particular estate carved out of the fee, it may exist and be conveyed independently of the reverWe adopted the former view as being more logical, in view of the repeated decisions of this court; but I readily admit that the latter is not unreasonable, provided it is not confused with a lot of inconsistent qualities.
The logical result of the present opinion of the court is to turn the homestead into an estate or interest in land. Its parts are (1) a particular estate for life to the homesteader,
JOYNER v. SUGG.
(2) a remainder to his children until they have become 21 years of age, (3) a contingent remainder to his widow during her widowhood unless she has a homestead of her own, and (4) the ultimate fee or reversion, which may be retained or conveyed by the homesteader. This idea seems to have been running through the minds of the court in one form or another for many years from their frequent use of the terms "homestead estate" and "reversion."
The court principally relies upon the case of Jenkins v. Bobbitt, 77 N. C., 385, which it says "is directly in point and has never been overruled or questioned." Then follows a long extract from that opinion in which occur the following paragraphs: "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." And again: "A sale by the owner of the homestead of his estate in reversion stands as at common law." This is a distinct recognition of two different estates carved out of the same fee.
This court in its present opinion uses the following language: "If this is not so, and the land itself or a part of it allotted for the purpose of exemption was in the mind of the legislature as being that thing which constitutes the 'homestead', why should it speak of a 'reversionary interest', which implies that there is a preceding estate or interest."
It may be asked why, if I am now willing to call it an estate, I did not so call it in writing the former opinion of the court? One sufficient reason was that this court, while frequently using the words "estate" and "reversion" had repeatedly declared in unequivocal terms that the homestead. was merely a quality of exemption attached to land, which is utterly inconsistent with the idea of an estate. Now that this court has virtually turned it into an estate by giving it
MCENTYRE v. COTTON MILLS.
all the elements that constitute an estate, I think it should be called by its proper name.
Although feeling compelled to dissent from the opinion. of the court, it is proper to say that I shall offer no further opposition to the adoption of the rule. It cannot be said that it is in violation of any of the constitutional or inherent rights of the citizen; and as the personnel of this court insures the permanency of this opinion for many years to come, I shall not further attempt to weaken what I cannot change. Where no moral question is involved, the mere consistency of individual opinion bears no importance compared to the necessity of establishing settled rules of property.
MCENTYRE v. LEVI COTTON MILLS.
(Filed May 12, 1903.)
The declarations of an agent of a corporation are not competent if made after the transactions and are not a part of the res gestæ, and it makes no difference that the agent was an officer of the corporation.
ACTION by H. A. McEntyre against the Levi Cotton Mills Company, heard by Judge E. B. Jones, and a jury, at March Term, 1903, of the Superior Court of RUTHERFORD County. From a judgment for the plaintiff, the defendant appealed.
McBrayer & Justice, for the plaintiff.
MONTGOMERY, J. The plaintiff brought this action in the court of a justice of the peace to recover of the defendant $8.35 for work and labor done in the defendant's cotton mill. Judgment was rendered against the defendant for the amount
MCENTYRE v. COTTON MILLS.
claimed by the plaintiff. The defendant's defense was that by a rule of the company the usual and customary pay day of the defendant for work in the factory was on the 14th of April, and as the action was commenced before the pay day, i. e., before the amount was due, the plaintiff could not reOn the appeal of the defendant, the jury answered the issue, "Is the defendant indebted to the plaintiff and if so in what amount? Yes, $8.35." In the Superior Court a witness, Wood, testified that he heard M. Levi, president of the cotton mills, and R. H. Smith, the superintendent, testify in the Justice's court. Wood was then permitted to testify over the defendant's objection that he heard Smith say, in the trial before the justice, that he Smith had discharged the plaintiff from service at the mill; that Levi in the justice's court did not deny owing the amount sued for, but that the amount was not due until the 14th of April. The evidence of Wood was not competent. When the defendant company filed its answer to the claim of the plaintiff, the power of the president or superintendent to make any further admission or declaration which could bind the company in reference to the cause of action, had passed. The admissions or declarations of the agent are received in evidence against the principal, not as admissions or declarations merely, but as parts of the res gestae; hence, only such as accompany the transaction in which the agent acted can be proved; what the agent said at a subsequent time is inadmissible. Rice on Evidence, 446. Whatever therefore the agent does, in the lawful prosecution of that business, is the act of the principal whom he represents. And (Story) "Where the acts of the agent will bind the principal, then his representations, declarations and admissions respecting the subject matter will also bind him, if made at the same time and constituting part of the res gestae." Greenleaf on Ev., Sec. 184c; Branch v. R. Co., 88 N. C., 573; Craven v. Rus
SMITH V. HUFFMAN.
sell, 118 N. C., 564. It makes no difference that the agents Levi and Smith were officers of a corporation. The same rule applies. Smith v. Melton, 68 N. C., 108; Rumbough v. Imp. Co., 112 N. C., 751; 34 Am. St. Rep., 528. New Trial.
SMITH v. HUFFMAN.
(Filed May 12, 1903.)
1. JUDGMENTS-Estoppel-Executors and Administrators—Judicial Sales -Debts of Decedents-Collateral Attack.
Where, in an action to sell land for assets, the administrator alleges that certain real property belonged to the deceased, and a party having a deed to the same, being a party to the action, fails to set up title thereto, he is estopped by the order of sale and de cree of confirmation.
2. JUDGMENTS—Irregularity—Judicial Sales.
The recital in a decree of confirmation of a sale of land that the matter in controversy was heard before the date set for hearing by consent of parties is conclusive of that fact.
ACTION by John Smith and others against Amos Huffman and others, heard by Judge M. H. Justice, on Jan. 20, 1903, at Rutherfordton, N. C. From an order refusing an injunction, the plaintiff appealed.
John T. Perkins, for the plaintiffs.
Avery & Ervin and A. C. Avery, for the defendants.
CONNOR, J. In 1878 David Vanhorn and wife executed a deed for the land sued for in this action, to Nancy Smith, a married woman mother of the plaintiff. Vanhorn died intestate in 1884. In 1885 his administrator filed a petition before the Clerk of the Superior Court of Burke County against the heirs at law of David Vanhorn, (including Mrs.