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remain to the survivor. The husband cannot convey, encumber or at all prejudice such estate to any greater extent than if it rested in the wife exclusively in her own right; he has no such estate as he can dispose of to the prejudice of the wife's estate. The unity of the husband and wife as one person and the ownership of the estate of that person prevent the disposition of it otherwise than jointly. As a consequence neither the interest of the husband nor that of the wife can be sold under execution so as to pass away title during their joint lives or as against the survivor after the death of one of them." "Indeed it seems that the estate is not that of the husband or wife; it belongs to that third person recognized by the law, the husband and the wife."

Among the numerous cases that might be cited, the following will serve to exemplify the principle, Todd v. Zachary, 45 N. C., 286; Woodford v. Higley, 60 N. C., 237; Long v. Barnes, 87 N. C., 329; Jones v. Potter, 89 N. C., 220; Simonton v. Cornelius, 98 N. C., 433; Harrison v. Ray, 108 N. C., 215; 11 L. R. A., 722; 23 Am. St. Rep., 57; Gray v. Bailey, 117 N. C., 439; Spruill v. M'f'g Co., 130 N. C.,


It is unnecessary to discuss the nature and effect of a resulting trust, as that point was decided as far as it affects this case in our former opinion; but a further discussion of the principle can be found in Gorrell v. Alspaugh, 120 N. C., 362.

While the action in this case is neither for the reconveyance of land nor for the reformation of the deed, yet we think it comes within the essential principle of Stamper v. Stamper, 121 N. C., 251. There, the contract was to reconvey the land to H. H. and Anna Stamper, and it was held that the widow was entitled to specific performance. In the opinion it is said: "We must now consider the quantity of interest to be conveyed, which we think is the entire estate in


the land acquired by Milton Stamper under the deed. The covenant was to reconvey to H. H. and Anna Stamper. They, being husband and wife, held their equitable interest, the right to demand a reconveyance upon breach of the covenant, in entirety with the right of survivorship."

The judgment of the court below is

MONTGOMERY, J., dissenting: In the original complaint it was alleged that the feme plaintiff, wife of the other plaintiff, had furnished one half of the purchase money, six hundred dollars, toward the purchase money of a tract of land of 154 acres which was conveyed by Thos. H. Long to the husband, and that the plaintiffs were entitled each to a deed for one half of the 154 acres; "that of the tract of 154 acres 59 and 15-100 acres were conveyed by the plaintiffs to a son of the husband by a former marriage upon an agreement that the wife should have a larger interest in the remaining 94 and 85-100 acres and her interest in said 94 85-100 acres has thus been raised from half which it was originally to 6-7 as stated in the first Article of this complaint in regard to the 60 acres therein described," and that the defendant Long is in the unlawful possession of the same having purchased it at execution sale, the execution having been issued against the husband. The prayer for judgment is in the following words: "Wherefore the plaintiffs demand judgment that the feme plaintiff Elizabeth A. Ray is entitled to 6-7 of said land and that the said II. M. Ray be declared to have held the same as a trustee for her, and that her interest could not be sold under execution, and that the said defendant could not acquire the interest which said Elizabeth A. Ray had in said land, and that she forbidding the sale, the defendant took subject to all equities which she had in said land, and for such other and further relief, etc."

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An amended complaint was afterwards filed as follows: 1. That at the time of the purchase of the 154 acres it was expressly agreed that the deed should be made to both the plaintiffs, H. M. Ray and Elizabeth Ray, and their heirs by Thos. H. Long, but that through mistake the deed was made to H. M. Ray and his heirs; that said Elizabeth A. Ray having paid $600 toward the purchase money, under the agreement, was entitled to have had said deed made to said H. M. Ray and Elizabeth and their heirs.

2. That the equitable title to said land at the time of the same under execution of the 60 acres described in the complaint, being in said H. M. Ray and Elizabeth and their heirs, the sheriff had no right to sell under execution the contingent remainder of H. M. Ray, and nothing passed to the defendant by said sale and the deed of the sheriff thereunder, and the said plaintiffs are still the owners of the said tract of 60 acres and entitled to the possession thereof.

There was the usual prayer for relief in such cases. It will be seen from a reading of the plaintiff's complaint that the original cause of action was based on the allegation that the plaintiff had furnished one-half of the purchase money of the land, and that the same having been applied by her husband to the purchase she was entitled to have him convey to her and her heirs one half of the tract of land, he having taken the deed to the entire tract in his own name. In the amended complaint she alleged that she bought the land together with her husband under an agreement that the deed should be made to them and their heirs, and that by mistake the deed was made to the husband alone.

According to the first complaint the feme plaintiff furnished a part of the purchase money, and for that she was to have an equivalent in land conveyed to her and her heirs. According to the amended complaint she furnished the money jointly with her husband, who furnished an equal amount,


and the deed was to be made to them and their heirs and assigns, by which an estate in entirety was created.

The defendant requested the court to submit amongst others two issues; one whether or not the feme plaintiff had paid the $600 of the purchase money, and the other whether at or before the time of the purchase by Henry M. Ray of the 154 acres from Thos. H. Long it was expressly agreed that the deed should be made to Henry M. Ray and wife jointly. His Honor refused the issues and submitted one in these words, "Was the purchase money paid for the land in controversy furnished equally by Elizabeth A. Ray from her separate estate and by Henry M. Ray to procure a home for said Henry M. Ray and wife?" Upon the pleadings the defendant in my opinion was certainly entitled to have the issues, which he tendered, submitted to the jury. After the evidence was all in however, it was unnecessary to submit the last one, for the reason that there was no evidence whatever tending to show that the deed was executed under a mistake, or that it was ever agreed up to the time the deed was executed to H. M. Ray, the husband, that the deed was to have been made to him and his wife. Therefore, under the issue which his Honor did submit, the jury having found that the feme plaintiff paid one half of the purchase money of the land, his Honor should have held as a matter of law that a resulting trust was created by the deed to the husband in favor of the feme plaintiff for one half of the tract of land, and that a judgment to that effect should have been rendered, according to the request for judgment made by defendant.

The defendant in his answer denied that any part of the land had been conveyed to the son of the husband, and there was no evidence offered on that question. In my opinion there was error.

CLARK, C. J., concurs in the dissenting opinion.



(Filed June 10, 1903.)

1. EXCEPTIONS AND OBJECTIONS-Evidence-Cross-Examination— Witnesses- Waiver—Examination of Witnesses.

Objections to questions to a witness must be interposed when the question is asked and before the answer, or the right to have the testimony excluded is waived.

2. EVIDENCE-Tax List-Railroad.

The testimony of a tax lister that the owner of a mill listed it at less than that claimed by them in an action for its loss by fire, is some evidence that it was not worth the amount claimed.

ACTION by Dobson & Whitley against the Southern Railway Company, heard by Judge E. B. Jones and a jury, at February Term, 1903, of the Superior Court of MCDOWELL County. From a judgment for the plaintiffs, the defendant appealed.

Justice & Pless and Busbee & Busbee, for the plaintiffs. S. J. Ervin, P. J. Sinclair and A. B. Andrews, Jr., for the defendant.

WALKER, J. This action was brought to recover damages for the destruction of a flour mill belonging to the plaintiffs together with the machinery and stock therein, which plaintiff alleged was caused by the negligent emission of sparks from one of defendant's engines.

In order to establish the negligence of the defendant the plaintiffs introduced A. B. Finch, who had been examined as a witness at a former trial, and attempted to prove by him that the netting of the spark arrester was too coarse to prevent the escape of sparks from the engine. The plaintiff's counsel subjected this witness to a very severe and rigid

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