86 S.E. 988 | N.C. | 1915
Lead Opinion
PLAINTIFF'S APPEAL
This case was before this Court on demurrer to the complaint, Dalrymplev. Cole,
The plaintiff thereupon tendered a decree that the defendant should execute to the plaintiff a good and sufficient deed in fee simple for the land described in the complaint, with the usual covenants of warranty and relieved of all encumbrances, upon the plaintiff paying into court the contract price of $1,400 and interest thereon from 14 January, 1911, said amount to be applied first to the payment of said mortgages and the judgment and interest which had been found to be a lien against said land, and by the sum of $125.65 which the plaintiff had paid on said purchase money, and further by the "present value of the inchoate right of dower of the wife of the defendant," as damages for (104) failure of title to that extent, unless said defendant shall in the meantime procure his wife to join in the execution of said deed with her privy examination duly taken; with further provision that the defendant make reasonable effort to procure his wife to execute said deed, and if she refuse to do so that then "the value of the inchoate right of dower" should be assessed by a jury at the next term.
The plaintiff assigns as error that the court struck out the words "inchoate right of dower" in both places and inserted in lieu thereof the words "except the homestead right."
The question presented is whether the constitutional requirement of the privy examination of the wife to the conveyance of the homestead is requisite except when the homestead has been allotted. This Court has repeatedly held that it is not. The homestead not having been allotted, and there not being any judgment under which it should be allotted, for the defendant answers that it was agreed that the judgment (which was for $100) should be paid out of the purchase money, there was no homestead which required the joinder of the wife. Her *151 joinder was required to release her inchoate right of dower only, which might or might not be of greater value than the interest in the homestead, if it had been allotted.
In Mayho v. Cotton,
In Bruce v. Strickland,
In Hughes v. Hodges,
In Scott v. Lane,
In Fleming v. Graham,
Though Fleming v. Graham, supra, was questioned in some subsequent cases, it has been recognized as the law since the enactment of chapter 111, Laws 1905, now Revisal, 686, which has been uniformly followed by the Court since its adoption as the correct construction of the Constitution, sec. 8, Art. X.
In Cawfield v. Owens,
(106) In Joyner v. Sugg,
"This very question was involved in Hager v. Nixon,
"The words `owner of a homestead' are used in section 8, by which the sale of the homestead without the assent of the wife is forbidden, and as the Court has said in Hager v. Nixon, supra, that the same words in all of the sections must of necessity receive the same construction, the restraint of alienation imposed by section 8 can apply only to a homestead which has been actually allotted. See, also, Bruce v. Strickland,
Besides the above very full and clear exposition of the constitutional provision, the defendant and wife, by executing the mortgage deeds referred to, had already conveyed their homestead in the land in question within the meaning of section 686 of the Revisal, and (107) the defendant cannot now be heard to claim a homestead therein.
In Rodman v. Robinson,
In Sash Co. v. Parker,
In Davenport v. Fleming,
In Simmons v. McCubbin,
In Power Corporation v. Power Co.,
Our conclusion is, both upon the authorities and the reason of the thing, that the Court correctly held in Mayho v. Cotton,
We are of opinion that the defendant could make a good and valid conveyance so far as the homestead interest is concerned without the joinder of his wife, but that her joinder is necessary to release her inchoate right of dower. In modifying the judgment tendered by the plaintiff there was
Error. *155
DEFENDANT'S APPEAL
Addendum
The defendant's appeal requires no consideration beyond the exception that the tender was not sufficient as the jury found under the charge of the court. We need not consider the exceptions as to the sufficiency of the tender, for the property was encumbered by liens beyond the contract price and it was not necessary that the plaintiff should pay $1,400 in court and lose the interest thereon during the five years that this litigation has been pending, while the interest was accumulating upon the liens. It was the duty of the defendant to have paid off and discharged these liens, and when the plaintiff alleged their existence and that he was ready, willing and able to pay the $1,400 into court the defendant should then and there have accepted the offer. Hardy v. Ward,
Besides, as the defendant's wife refused to join in the conveyance, and it was necessary for the jury to ascertain the value of her inchoate right of dower, the plaintiff could not know until that was done the amount he should pay in, even if there had been no outstanding liens and encumbrances.
The defendant is in default by the failure of his wife to join in the deed releasing her right of dower and in his failure to pay off the liens. He is in no condition to object that the plaintiff did not pay $1,400 in court until he could give a good and sufficient deed to the premises with a release by the wife of her inchoate right of dower or a deduction for the value thereof duly ascertained.
Upon the facts of this case no more was necessary on the part of the plaintiff than the tender in his complaint of the amount of the purchase money upon the cancellation of the liens and the (109) tender of a good and sufficient deed on the part of the defendant with covenants of warranty. The judgment of the court that the defendant should specifically perform upon the plaintiff now paying into court the $1,400 purchase money with interest thereon from 13 January, 1911 (the expiration of the ninety days), was correct. It is not necessary to consider the exceptions, therefore, as to the actual manner and mode of the tender of the $1,400 before that time.
No error.
Cited: Schwren v. Falls,