The following are substantially the facts as found by the jury, with consent of the parties, or admitted by the pleadings: On the 20th of Septembеr, 1881, the plaintiff entered into a written contract with the defendant, to sell him a tract of land, lying in the county of Wake, in White Oak Township, on the waters of Crabtree Creek, adjoining the lands of A. D. Jones,. William Upchurch, Margaret Maynard and others, containing one hundred and thirty-seven acres, more or less, for and in consideration of $1,500, one thousand dollars of which was paid in a note on one Samuel House, and the defendant gave his own note for the balauee of $500, payable on the 1st day of October, 1882, with interest at 8 per cent.; and it was agreed, in case the suit then pending in Wake Superior Court, wherein Mariоn Castlebury was plaintiff, and J. R. Castlebury was defendant, for divorce, should by that time be ended, and if not, whenever said suit should be determined, and in case, the said Marion Cas-tlebury should, in her said suit for divorce, obtain a judgment *283 for alimony, then the said J. Q. Maynard should pay thе sum out of the deferred payment, to the said Marion Castlebury, and the balance, if any, of the purchase money, he should pay to the said J. R. Castlebury, aud upon the payment of the balance of the purchase money, the said J. R. Castlebury bоund himself, his heirs, executors and administrators, to make to the said J. Q,. Maynard, his heirs, executors, assigns, &c., a good fee simple titlе to the land. This agreement was signed and sealed by J. R. Castlebury and J. Q,. Maynard. The note for five hundred dollars was executed by Maynard according to the agreement. At the January Term of the Superior Court of Wake, there was a judgment in the case of divorce: “That the plaintiff and defendant be divorced and separated from bed and board, and that the plaintiff receive from the defendant the sum of one hundred and twenty-five dollars, in full satisfaction of all alimony.”
It was admitted on the trial, that thе land, which was contracted to be sold, was the same laud which was allotted to the plaintiff as his homestead, on his own request and petition, on the 5th day of April, 1869, and that said allotment was duly-recorded in Wake county', according to law; and that the plaintiff was married about the-- day of-, 1844, and that his wife is still living in this State, as a resident therein, and they have one child about fifteеn years of age. It was further admitted, that the plaintiff was ready' and willing to make a deed for said land, executed by himself, but without his wife joining therein.
The plaintiff demanded a judgment for the five hundred dollars, with interest, and that the land be sold and the money applied to the satisfaction of the judgment.
The defendant resisted the plaintiff’s cause of action, aud set up as a defenсe that the homestead is still a charge upon the land, and the plaintiff cannot make a title.
*284
The contention of thе parties presents for onr consideration, the question whether the plaintiff can make, under the facts of the case, a good title to the land described in the complaint. If he cannot, it would be against equity and good conscience that he should recover the amount of the note in suit, for a purchaser of land is never required to acceptt a doubtful title.
Batchelor
v.
Macon,
The plaintiff contends, that as the marriage took place before the adoption of the Constitution of 1868, and the land was owned by the plaintiff prior to that time, that the right of homestead did not attach to the land, and the plаintiff could make a good indefeasible title to the land, without joining his wife in the conveyance. That, as a general prоposition, has been too often decided by this Court to be controverted. But the decisions referred to, have held that to give the husband such a right, the
marriage
and the
ownership
of the land must both have existed before the adoption of the Constitution;
Reeves
v.
Haynes,
When, on his own petition, he had his homestead in the laud allotted to him in 1869, it was such an acquiescence in the appropriation of his land, as a homestead, as must be deemed a voluntary surrender of his absolute right of alienation, and it could not be impeached by creditors, and the homestead would then pаss to his infant children or widow, as the law directed.
Bruce
v.
Strickland,
But it is urged that there can be no use of the wife joining in the deed of the husband in this case, for even if she should survive her husband, and no child be alive at that time, she would be debarred of any right to the homestead, by reason of the decree of divorce.
There is nothing in thаt objection, for it is well settled that a decree of divorce,
a mensa et thoro,
has no effect to change the property relations of the husband and wife.
Rogers
v.
Vines,
We are not called upon to suggest any remedy to the parties. They of course will takе such remedies as they may be advised. There is error. Let this be certified to the Superior Court of Wake, to the end that a venire de novo may be awarded.
Error. Reversed.