Murray v. . Hazell

Mermm’oN, J., (after stating the case). The complaint fails-to allege a cause of action. The deed of the assignee in bankruptcy executed to the defendant, and under which the latter claims to derive title to the land mentioned subject to the plaintiff’s homestead therein, is in no respect, way or manner inconsistent with, nor does it in terms or legal effect interfere with the plaintiff’s right to his homestead. On the contrary, it purports to recognize it and to convey an estate subject to it, and does so in legal effect. It does not in any degree becloud, complicate, obscure, or imperil the plaintiff’s title to his homestead, nor can it do so in the future, and this is plainly to be seen and understood by himself and all persons who may in the future desire to purchase or have anything to do with it. The deed, whenever it shall be read, will declare upon its-face the character of the estate it conveys, and that it is subject to the plaintiff’s homestead in the land. The jurisdiction of a Court of Equity to afford relief against deeds and other instruments in writing which in their nature and apparent validity operate in such improper and unjust way as to cast doubt upon the title or right of the party complaining arises only when the deed or other instrument in question has such present apparent validity and effectiveness, or where it is capable by reason of such causes, of misuse in the future to his prejudice, and he has no other remedy. If the deed or other instrument is, upon its face, void, or if the complaining party may have a present legal remedy, a Court of Equity will not interfere; nor will its authority *172 be interposed where the purpose of the deed is clear and it cannot operate presently or in the future to the injury of such party, as in the present case. Busbee v. Macy, 85 N. C., 329; Busbee v. Lewis, Idem, 332; Pearson v. Boyden, 86 N. C., 585; Byerly v. Humphrey, 95 N. C., 151; Story’s Eq. Jur., §§ 699, 701. The bankrupt law (Rev. Stat. U. S., § 5045) allows to a bankrupt homestead in the same measure as it is allowed to him by the laws of the State in which he has his domicil to be exempt from levy and sale upon execution or other process or order of any Court. In view of this provision, it was contended, in the argument before us, that inasmuch as any estate or interest of the debtor in the land embraced by the homestead is not subject to levy and sale upon any execution or other process or order of any Court in this State until the homestead shall be over, as has been decided in Markham v. Hicks, 90 N. C., 204, and other similar cases, therefore the sale of such estate by the assignee in bankruptcy and the deed made in pursuance thereof by the as-signee to the defendant were void. If this contention were well founded, the plaintiff could not maintain this action, because in that case the deed upon its face would be inoperative and void, aud for the reason already stated a Court of Equity would not interfere. The Court would not do the vain thing to declare a deed void which upon its face appears to be so. But the plaintiff misapprehends the law applicable. The homestead is allowed by the bankrupt law — not by the laws of the State — the sale of the bankrupt’s real property conveyed by him to the assignee in bankruptcy, subject to the homstead in the measure allowed by the State, is made by virtue and in pursuance of the bankrupt law and not the laws of the State. The bankrupt law requires the assignee to sell all the bankrupt’s estate and interest in his lands, subject to the homestead (Rev. Stats. U. S., §§ 5045, 5062); *173 and in this case, he sold the land subject to the homestead. So that .the provisions of the Constitution and statutes, and judicial decisions of this State in respect to homestead have no application except in respect to the measure of it, and as to this they have application only because the bankrupt law so provides. There is no error and the judgment must be affirmed. Affirmed.