Thomas v. Fulford

Furches, J.: The homestead provision of the Constitution of 1868 has given rise to many interesting and troublesome questions. And it must be admitted that some of our decisions are not in harmony, and the 'homestead is by no means a settled question. We do not propose in this opinion to give a critical examination to the many cases we have on the homestead, but to treat it mainly as an original question, referring only to a few cases which we think sustain our view7 or illustrate our argument. This case presents very nearly every question of the homestead that has come before this Court for its consideration. — 671 — It presents these questions — what is a Constitutional homestead ? — when does it commence? and how long does it continue ? — when and how can the homesteader sell his homestead estate and what does the purchaser get? — Is the homestead exemption personal in its naturé and operation or is it in rem.? Then, what is this homestead ? In some of the early decisions it is treated as an estate and called a determinable fee ; but this doctrine has long since been abandoned and we have numerous decisions that hold the homestead is not an estate but an exemption only. This we think is true. But what is it that operates, and how does it operate to exempt the homesteader’s land from sale by execution — is it in personam or is it in rem? We admit that onr more recent decisions are disposed to treat it as a personal privilege. This we think is an error and has led to most of the troubles we have had in construing the home-ste-id, and has brought about the great conflict in our decisions. We are of the opinion that it is not personal, -but is in rem — that it is a condition, a quality, created by the Constitution, which attaches to the land, whereby an estate is exempt from sale. This, it seems to us, is the great question in the case and first to be determined. Then what is exempted? Land. What is it exempted from? Execution — fi. fa. It is the land the creditor is trying to sell — not the debtor.* The homestead provision exempts the debtor from nothing. It is like a warranty attached to the land and runs with the estate wherever it goes and enures to the benefit of any one that shall hold the estate until the homestead shall end. The next question is, when does this homestead condition attach, and can the homesteader (if a married man) sell the homestead without his wife’s joining in the con — 672 — veyance? And our opinion is that the homestead condition attaches at the moment when the conditions are complied with. That the condition created -by the Constitution is always present, and as soon as it finds a resident of the State — the owner and occupier of land — the condition attaches. And the homesteader can no more sever it from the estate than he could sever a warranty that had attached from the estate. A sells to B with warranty. B sells to C without warranty. Still C gets the benefit of A’s warranty because it was attached to and ran with the estate. And B could not sell the estate and reserve the warranty. Neither could he sell the estate to C and the warranty to D for the reason that it was attached to and ran with the estate. So, if we taire the definition of a homestead given above — “That it is not an estate but only an exemption”— and add to it the definition given by that great Jurist Chief Justice Pearson in Littlejohn v. Egerton, 77 N. C., 381, that, “A homestead right is a quality annexed to land whereby an estate is exempt from sale under execution for debt” and “is not a personal trust,” we have a full and complete definition of a constitutional homestead. Then it follows, as a general rule, that the homesteader cannot sell (the homestead unless the wife joins him in the conveyance. Article X, Section 8, of the Constitution, provides that any sale he makes of the homestead estate without his wife joining him in the deed of conveyance, shall be void. And if, as we have seen, the homestead conditions attach as soon as it finds a resident of the State, the owner and occupier of land, there never is a time when he can sell the homestead estate without his wife joining him in the deed of conveyance.. Doubtless there are exceptions to this general rule. But they are the exceptions and not the rule. We would think, where a homestead had been laid off' — 673 — and located, tbe husband might sell and convey any land he owned outside of this boundary without his wife’s joining him, for the reason that the constitutional protection does not attach to his other land outside of this boundary. There may also be an exception where the marriage took place and the land was acquired before the Constitution of 1868 under the principle in Sutton v. Askew. And there may be other exceptions that do not occur to ns now. We are aware it has been held otherwise in Hughes v. Hodges, 102 N. C. 236, in Fleming v. Graham, 110 NC. 374, and probably in other cases. In Hughes v. Hodges it is held that the general rule is that the homesteader can convey without the joinder of his wife, and where it is necessary for her to join is the exception. And four conditions are specified, in which it is necessary for her to joi’n — all grounded upon the idea that there is no homestead until the homesteader is about to become insolvent. This pos tion, we think, must be incorrect. It is not the condition of the homesteader that creates the homestead condition, but the force of the Constitution attaching to and acting upon the land. The construction we give to Section 8 of Article X of the Constitution is in accord with the plain and simple language of that article. While the construction given it in Hughes v. Hodges is, as we think, adding to what is contained in the Constitution. This interpretation of the homestead estate relieves the Court from many troublesome questions — such as to when it is necessary for the wife to join in the conveyance, and as to the duration of the homestead exemption in the hands of a purchaser. That a sale of the homestead estate by the homesteader without the joinder of his wife is void and passes nothing. That if he sells and his wife joins in the conveyance, and there are no incumbrances at the time.of the sale, the pur — 674 — chaser gets whatever estate the grantor had, free from incumbrances. But if there are judgment liens on the land at the time of the' conveyance by husband and wife, the purchaser takes the estate subject to such liens, but protected from sale under execution upon said jugdments to the same extent that the homesteader and his family would have been if they had not sold, because the homestead exemption is a condition that runs with the estate. But there are other questions involved in this case. Thomas, being embarrassed, though there were no docketed judgments against him, made a mortgage to Fowle and IVIayo without his wife’s joining him, in which he made the following reservations: “provided that the party of the first part hereby excepts and reserves from the operation of this deed the homestead estate, and the right to a homestead therein.” Since the making of the mortgage, judgments have been docketed against Thomas, his homestead has been laid off, the mortgagee’s have sold, and by mesne conveyances from the mortgagees Thomas’ wife has become the purchaser. And she and her husband have contracted to sell to the defendant, and he refuses to comply with the terms of the sale, alleging that the plaintiff cannot make him a good title to the land. It is admitted by the plaintiff that if Thomas reserved the estate in the land, the docketed judgments would be a lien, a'nd they could not convey perfect title. But they contend that he did not reserve the estate but only the homestead exemption. And this being so, there was no estate for the judgment liens to act upon and attach to. And it is further contended that there being no judgments against Thomas at the date of the mortgage, he had a right to make this mortgage without his wife’s joining him in .the conveyance. Hughes v. Hodges, supra. Treating the mortgage for the present as an effective — 675 — conveyance, it is perfectly manifest to ns that be reserved the estate. He says that be “excepts and reserves from the operation of this deed tbe homestead estate,” and wbat authority have we for saying that he did not % But he further says “And the right to a homestead therein.” Why make this last exception and r< servation if he had reserved this and nothing more in the first exception and reservation ? • But we have shown in a former part of this opinion that he could not sell the estate and reserve the homestead which is a condition attached to the land and runs with the estate. And besides the other reasons we have given why he could not copvey without his wife’s joining him in the deed as provided in se stion 8 of article X of the Constitution, we now propose to show that he could not do so, under the decision of Hughes v. Hodges, supra, as it is contended he could. That case makes four exceptions to the general rule that the husband can convey without his wife’s joining in the conveyance. And the third exception is, where the husband makes a mortgage reserving the homestead, which has to be laid off before the trust can be foreclosed. So, we see that this third exception contained in Hughes v. Hodges is direct authority for holding. that the mortgage deed of Thomas to Fowle and Mayo was utterly void and passed no estate. There is error and the judgment is reversed.