72 S.E. 451 | N.C. | 1911
This action was brought to compel the specific performance of a contract to convey land, and was heard below upon a demurrer to the complaint, which alleged: "That on 15 October, 1910, the defendant, for a valuable consideration, contracted and agreed in writing with the plaintiff to make, execute, and deliver to the plaintiff, his heirs and assigns, a good and sufficient deed of conveyance to the tract of land described in the complaint, with convenants of warranty, upon the payment to the defendant of the sum of $1,400, the purchase price agreed upon, within ninety days from the date of the contract; that the contract was duly recorded, and within the ninety days fixed in the contract the plaintiff notified the defendant that he elected to take and purchase *286 the land in accordance with the terms of the contract, and would tender the $1,400 within the ninety days, and that he did actually tender said sum within the ninety days and demand that the defendant (354) make, execute, and deliver a deed in accordance with the terms of the contract, but that the defendant neglected, failed and refused to execute and deliver the deed; and that the plaintiff is still ready, able, and willing to comply with the terms of the contract and pay the purchase money, upon the execution and delivery of the deed. That after the execution of said contract the plaintiff actually paid or assumed the payment of $133.65 for the benefit of the defendant, which sum, it was agreed by the defendant, should be applied, pro tanto, to the purchase price of the lands, under the contract." It was further alleged in the complaint, that at the time of the tender of the purchase money and the demand that the defendant execute and deliver the deed, there were mortgages executed by the defendant and his wife to certain parties named in the complaint and duly recorded in Moore County, which were and are liens on the land, and also a judgment docketed against the defendant, which was also a lien on said land, in favor of Mrs. S.D. Cole, the plaintiff in the judgment, and against the defendant for the sum of $100, with interest and costs. The case on appeal states: "The court finds as a fact that the judgment referred to in the complaint was docketed on 6 May, 1910."
The defendant demurred upon the following ground: "That a cause of action is not alleged in the complaint, in that it appears upon the face of the complaint that the defendant is, and was at the time of the execution of the alleged contract referred to in the complaint, a married man, and that defendant's wife did not join in the execution of said alleged contract, and at the time of the execution of said alleged contract there was a docketed judgment as well as recorded mortgages, both liens thereon, and that execution could have been issued upon said docketed judgment, and the alleged contract is, therefore, void and inoperative."
It was admitted upon the argument of the demurrer that the defendant was, at the time of the execution of the contract, and still is, a married man. That admission also appears upon the face of the complaint.
(355) At the hearing, and upon consideration of the demurrer, which was ore tenus, the court sustained the same and dismissed the action of the plaintiff, and he appealed. After stating the case: The defendant demurred to the complaint upon the ground that it appeared therefrom that the plaintiff *287 was a married man at the time the contract was made, that his wife is living, and that at said time there was a judgment against him which was duly docketed in the Superior Court and constituted a lien on his real estate, and that as execution could have been issued on the judgment at any time after it was docketed, the contract was void, for the reason that it was an executory agreement to convey his land, and this could not be done, as he was entitled to a homestead and his wife had not joined in the execution of the contract with privy examination, relying upon the provision of the Constitution (Art. X, Sec. 8) forbidding any disposition of the homestead, except by the deed of the homesteader and "the voluntary signature and assent of his wife [thereto, which shall be] signified on her private examination, according to law."
It was said by Justice Avery in Hughes v. Hodges,
In the defendant's appeal in Hughes v. Hodges, at p. 262, Justice Avery, for the Court, thus sums up the law: "The presumption of law is in favor of the validity of this and every other deed executed in due form. If the defendant seeks to have it declared void, because it was made in disregard of the requirements of section 8, Article X of the *288
Constitution, the burden is upon him to show that the homestead right attached to the land and vitiated the conveyance, for the want of the joinder of the wife, with privy examination, for one of the three following reasons: (1) That a homestead had been allotted to him in the land described in the mortgage deed, either on his own petition or by an officer in accordance with law. (2) That there was an unsatisfied judgment or judgments that constituted a lien upon the land, when conveyed, and upon which execution might still issue, and make it necessary to have his homestead allotted, or a mortgage reserving an undefined homestead, and constituting a lien on the land that could not be foreclosed without allotting a homestead to the mortgagor in the land. (3) That the mortgage deed was void, because executed with intent to defraud the defendant's creditors, and that the mortgagor did not have a homestead allotted already in other lands. In order to rebut the presumption of validity by bringing the deed under the prohibition contained in section 8, Article X of the Constitution, one of these grounds of objection mentioned must be made to appear by any person (357) who would raise a question as to the effect of the conveyance." It is this construction of the Constitution upon which the defendant relies to invalidate the contract of sale or option. JusticeMerrimon dissented from the judgment and opinion of the Court, and held the view that the homestead right, and the protection guaranteed by the Constitution against a transfer thereof without the assent and privy examination of the wife does not depend upon any state of indebtedness, nor is it required that the homestead should have been actually allotted, or that a judgment lien or other conditions indicated in the opinion of the Court should exist before the provision of Article X, section 8, of the Constitution, which forbids a conveyance of the homestead without such assent and privy examination, would become operative. He also thought that the opinion of the Court in Hughes v. Hodges
was in conflict with prior decisions of this Court in Jenkins v. Bobbitt,
In Joyner v. Sugg,
We have thus reviewed two of the recent cases upon this subject, not for the purpose of testing the relative strength (359) or value of the different and, in some respects, apparently conflicting views to be found in some of the decisions upon the subject, but *290
rather for the purpose of clearly defining the proposition upon which Mr. Spence relied, in his able argument before us, to sustain the demurrer. He urged that the allegations of the complaint, with the finding of the judge as to the date of the judgment and the admission as to the marriage of the plaintiff at the time of the contract, showed that sufficient facts existed to invalidate the contract, under the decision in Hughes v.Hodges, supra, and Fleming v. Graham,
We must not be understood as passing upon the soundness of the objection to the complaint, even if any one or all of said facts had been alleged therein. We merely decide that, in the present state of the pleadings, the demurrer should have been overruled and the defendant allowed to answer. The facts may then be fully disclosed, no injustice will be done the plaintiff by assuming the existence of facts which do not clearly appear, and we may the better and the more safely consider and solve the interesting questions, as to the homestead right, which were argued before us. There was error in the respect indicated
Error.
Cited: S. c.,
(361)