41 S.E. 891 | N.C. | 1902
Was it necessary for the defendant in her answer to have specially pleaded her claim in the land as her homestead interest? If so, the evidence offered and received was irrelevant and incompetent. The rule under The Code pleading (similar to that under the old proceedings in ejectment) permits under the general issue — general denial — proof that a deed introduced as evidence of title was executed by a grantor (643) wanting in capacity, and, therefore, for that reason, void. Mobley v.Griffin,
In our case, however, no such presumption existed, the deed under which the plaintiff claims being one from a mortgagee made in default of the payment of the debt secured in the deed, voluntarily made by the defendant's husband, to secure an ordinary debt due in 1888, and it was permissible to offer proof to avoid the plaintiff's deed, under the general rule, under the general denial in the defendant's answer.
The main question for decision — whether the mortgage deed executed by the husband is void or only voidable — is of more importance. The plaintiff's position is, first, that as no homestead had been allotted to the husband of the defendant, before he executed the deed of mortgage, the title passed to the mortgagee under the declaration in Mayho v. Cotten,
No error.
Cited: Dalrymple v. Cole,