Gilmore v. . Bright

Davis, J., (after stating the case.) The first exception presented in the record is' to the refusal to submit the issue tendered by the plaintiffs. It is insisted by counsel for plaintiffs that, as it was alleged in the complaint that “ Samuel Gilmore died seized and possessed ” of the land in dispute,, and it was denied in the answer, it presented an issue whiffh the plaintiffs had a right to have passed upon by the jury. It is admitted in the answer that Samuel Gilmore was not dispossessed during his life; it is admitted that he was in possession at the time of his death, but whether he was. “ seized and possessed ” in the sense which carried with it the ownership of the land was properly presented in the. issues submitted under the direction of the Court, and the. *386 issue insisted upon was unnecessary, and if it could serve any purpose it would be only to mislead and confuse the jury. The material questions, so far as they determined the ownership o'f the land in controversy, were, whether the deeds from Gilmore to Bright were fraudulently obtained, and whether they were intended only as a security for a debt. These questions were fairly presented by the issues submitted under the instruction of the Court, and there was no error in refusing the issue tendered. That there is no error in refusing to submit unnecessary or immaterial issues is too well settled to need citation of authorities. 2. The second exception was to the refusal of the Court to give the instructions asked for by the plaintiffs. This exception is ’not well founded. The case shows that the lands in dispute were the property of Samuel Gilmore long prior to the adoption of the Constitution of 1868, and that he and his wife, Thany, were married long prior to that time. There never was any allotment of the said lands as a homestead, nor was there ever any petition by the said Gilmore to have such an allotment made, nor was there ever any act of his indicating any purpose, voluntarily, to have said land, or any portion thereof, dedicated to the purposes of a homestead. He had, prior to the adoption of the Constitution of 1868, the absolute right to sell or dispose of these lands as he pleased, without the concurrence of his wife, and, if he chose to do so, without her consent and against her will; and it is too well established by the authorities, Federal and State, that this right was not divested by Art. X, Sec. 8, of the Constitution, to be questioned now. The State could not, by its Constitution or its laws subsequently adopted or enacted, deprive him of his vested right to sell or dispose of the land in question, without contravening that provision of the Constitution of the United States which declares that no State shall pass any " law impairing the obligation of con *387 tracts.” Con. U. S., Art. I, Sec. 10. Unless a person whose lands were acquired prior to the adoption of the Constitution of 1868, and whose marriage was prior to that date, voluntarily surrenders his right of alienation as it then existed, it cannot be taken away from him. He may surrender this right by having the land allotted and set apart as a homestead, upon his own petition, or by acquiescing in such an allotment; but all his rights (except as they maybe affected by his own acts) and the rights of his creditors, as they existed prior to the adoption of the Constitution, remain unimpaired. Edwards v. Kearsey, 6 Otto, 595; Sutton v. Askew, 66 N. C., 172; Brice v. Strickland, 81 N. C., 267; Murphy v. McNeill, 82 N. C., 221; Reeves v. Haynes, 88 N. C., 310; Fortune v. Watkins, 94 N. C., 304; Castlebury v. Maynard, 99 N. C., 285, and the numerous cases cited in these authorities. 3. The third exception was to the charge as given. This exception cannot be sustained, and the reasons for overruling the second exception apply with equal force to this. It was insisted on the argument of counsel for plaintiffs, that the constitutional provision — that “ no deed made by the owner of a homestead shall be valid without the voluntary signature, and assent of his wife signified on her private examination according to law” — prescribed a mode by which deeds shall be executed, and that it is within the power of the State to regulate and determine the form and manner in which the deeds of its citizens shall be executed in order to give them validity. Undoubtedly the State may prescribe the manner or form in which deeds, wills or other instruments shall be executed and proved, as that they shall be signed and witnessed, and acknowledged or proved before some designated officer, and regis'ered in a manner prescribed; but it can prescribe no *388 mode or form of conveyance by which a vested right is annulled or defeated. It cannot prescribe a form of conveyance that will defeat the right to convey. Gilmore had the right to convey the lands in question without the consent of his wife, and the State had no power to deprive him of this right by declaring that he should not convey without her consent. There is no error. Affirmed.