A. T. Bruce & Co. v. Strickland
81 N.C. 267
N.C.
1879
Check Treatment
Smith, C. J.

The defendant was married in the year 1847, and acquired title to the tract of land described in the pleаdings prior to March, in the year 1867. He contracted a debt to one John A. Harrison of $500 subsequent to thе year 1868, and to secure the same, on the 20th day of January, 1874, conveyed the land to said Harrison, by dеed absolute in form and with a contemporary parol agreement between them, that the debt should be paid in two years in redemption of the land. The wife was not a party to the deed, and the defendant owns no other land. No homestead has been laid off to the defendant, and he has infаnt children living.

On the 3rd day of May, 1877, Harrison, for a valuable consideration, transferred the debt and his estate and interest in the land to the plaintiffs. The debt and interest due on the 25th day of February, 1879, amounts to $589.62, whereof $489.72 is principal money and bears interest from that date. ‍​‌‌‌​​‌​​​‌‌​‌‌​‌‌​‌​​​​‌​‌​‌​‌​‌‌​​‌​​​​‌​‌​‌​‌‍These facts are found by the referee -and no exception is taken thereto. The referee adjudges that the deed is effectuаl to convey the reversionary interest of the defendant in the land, subject to his right of homestead thеrein, and directs a sale unless the money due is paid in three months.

The plaintiffs except to the referee’s finding that only a reversionary interest was conveyed and that the land remained still subject tо the defendant’s right of homestead. The exception being overruled the plaintiffs appeаl.

The marriage took place and the title vested in the defendant previous to the restoration ‍​‌‌‌​​‌​​​‌‌​‌‌​‌‌​‌​​​​‌​‌​‌​‌​‌‌​​‌​​​​‌​‌​‌​‌‍by statute of the common law right of dower, and before the creation of a home *271 stead in land. It was then in the power of the defendant by his deed to convey a full and complete title in fee to thе land. Has this absolute dominion over his property been abridged by any act of subsequent legislation, оr could it be under the principles of the constitution without the owner’s consent or concurrence? The value of property consists in its use, disposition and conversion into something else, and thеse are the elements constituting a vested right which the legislative body cannot take away except for public use and then only on making compensation to the owner. This security ‍​‌‌‌​​‌​​​‌‌​‌‌​‌‌​‌​​​​‌​‌​‌​‌​‌‌​​‌​​​​‌​‌​‌​‌‍is guaranteed in the constitution of the United States in the clause declaring the obligation of contracts inviolable.

In Sutton v. Askew, 66 N. C., 172, the right of the husband to convey his lands acquired before marriage and before the passage of the act of March 27th, 1869, extending dower to all lands whereof he may have been “ seized and pоssessed at any time during coverture,” free .from the claim of dower, was carefully considered in a.'long and elaborate opinion delivered by Mr. Justice Reade, and the conclusion reaсhed was that such pre-existing right could not be impaired, and the husband’s conveyance was* upheld. The court declares that the “ act does not affect rights or marriages which existed before its passage.

In Williams v. Munroe, 67 N. C., 164, the husband conveyed lands in the year 1859, аfter his marriage, and, as we infer, through the fact is not expressly so stated, died after the passing of the act enlarging .dower,’and ‍​‌‌‌​​‌​​​‌‌​‌‌​‌‌​‌​​​​‌​‌​‌​‌​‌‌​​‌​​​​‌​‌​‌​‌‍it was held that his wife had no, claim thereto. These decisions rest upon ‘thе sanctity of vested rights under the protection of the constitution, among which is eihbraced the yus disponendi or • right Of alienation. The principiéis too deeply imbedded in the fundamental law of freejgovernments to rеquire vindication. If this be true in regard to dower, how can an involuntary restriction be imposed. in. the prоvisions of the *272 homestead ? We are unable to distinguish between the cases in this immunity of the rights of property from legislative interferences. We are therefore of opinion that the defendant could convey his land, free alike from dower or homestead, and having exercised the right it is now beyond his rеcall. But we do hot ‍​‌‌‌​​‌​​​‌‌​‌‌​‌‌​‌​​​​‌​‌​‌​‌​‌‌​​‌​​​​‌​‌​‌​‌‍mean to intimate that the homestead may not attach to the debtor’s land by his own consent, and this as well by his own seeking as by the allotment by the sheriff under the provisions of the constitution and the act of April 7th, 1869, Bat. Rev., ch. 138, or upon his death, by such as then may be entitled.

His acquiescence in the appropriation of his lands, as a homestead, would be deemed a voluntary surrender of his absolute right of alienation, and it could not be impeached by creditors. The homestead wоuld then pass to his infant children or widow as the law directs. When he conveys before this is done, and new rights and interests are thus created, the assent to the homestead cannot be given so as injuriously to аffect them. In other words as to such lands the debtor may if he chooses take his homestead therein, and hold it exempt from liability; and if without doing so he conveys his estate, it passes and vests in the granteе in the same plight and freed from the further control of the grantor. This view of the case dispenses with the necessity of considering the nature of the homestead as an .estate or right anterior to аn assignment, and other interesting topics discussed in the argument.

The referee erred in his ruling, and the judge erred in affirming the same, and the plaintiffs’ exception must be sustained.

Error. Reversed.