Dixon v. . Robbins

Clark, J.: The privy examination of the wife taken in Nash county before a Justice of the Peace of Edgecombe was invalid. Williams v. Kerr, 113 N. C., 306, Ferebee v. Hinton, 102 N. C., 99. The sixty-ñve-acre tract of land was acquired in 1861, and the fifty-acre tract in 1880, while the marriage 'was in 1857. His Honor properly held that no privy examination was necessary to bar the contingent right of dower as to the first tract, and that as to the latter the sale under foreclosure was to be made subject to such contingent right. Castlebury v. Maynard, 95 N. C., 281. The homestead had not been allotted in these lands when the *104 mortgage was made, lienee the wife’s joinder in the deed was not necessary to bar the homestead' right therein, although the grantor was indebted at the time. Hughes v. Hodges, 102 N. C., 236. It is true that decision holds that the conveyance to bar homestead would not be good without the wife’s signature and privy examination when there was a docketed judgment upon which the homestead could bo allotted, but here the only docketed judgment, when the mortgage was executed, is held by the mortgagee, the plaintiff in this action, who offers on the trial to cancel said judgment, it was doubtless merely an, inadvertence that judgment was rendered against the wife personally for the amount of the debt. Pippen v. Wesson, 74 N. C., 437. In that respect the judgment must be modified. Modified and Affirmed.