Joyner v. SuggJoyner v. Sugg
- Reporters:
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- Before:
- Douglas
The plaintiffs seek by this action:
1. To establish that J. A. E. Joyner took the land upon the parol agreement that she would hold the naked legal title for the use of Blaney Joyner in fee, and that he having paid off
But the evidence set out in the record shows no agreement nor any acknowledgment of a parol trust by J. A. E. Joyner. The parol trust by R. L. Davis in favor of Blaney Joyner was performed by his execution of the conveyance to J. A. E. Joyner, as directed by Blaney Joyner. The mere payment of the purchase money by the latter gave the plaintiffs no rights as his heirs at law as against his wife, to whom he had a right to give the property, except as to creditors, and the creditors are all paid off.
2. The plaintiffs contend that if they cannot establish
We may as well frankly say that we find it impossible to fully reconcile all the decisions of this Court upon the subject. We will not try to do so, but will attempt simply to present those principles necessary for the determination of this case in the view we take of it.
This is the first time that this question has come directly before this Court as now constituted. We do not regard the case of Williams v. Scott, 122 N.C. 545, as directly affecting the case at bar. In that case the homesteader neither sold nor attempted to sell the so-called reversion of the homestead. It was sold in bankruptcy proceedings, and referring thereto this Court says, on page 549: “The decree of the district court ordering a sale of the reversionary interest in the land, not having been appealed from by the bankrupt, concluded him and binds the defendants who claim under him and are privies in blood and estate.” Again, the Court says, in the sentence immediately preceding: “It (the decree) was not open to collateral attack, and the decision of the district court in the matter, where it had sole jurisdiction, was and is binding on our courts.” This was the law of that case.
Our earlier decisions seem based upon the idea that the homestead is an estate. This is apparent from the very sentence quoted from Jenkins v. Bobbitt, 77 N.C. 385, upon which the defendants rely, and in which Judge Pearson repeatedly
Another quotation is as follows: “But a sale by the owner of a homestead of his estate in reversion stands as at common law, and the owner has full power to sell it.” With the highest respect for the great Chief Justice, who evidently regarded the homestead as a particular estate carved out of the fee, we are unable to find that the “homestead estate” had any standing at common law. If an estate at all it would seem to be a life estate in the homesteader, with a contingent remainder for an uncertain term of years to his children and an ultimate remainder or reversion back to himself if the land remains unsold, or to his grantee if sold.
One thing at least seems clear: A homestead is either an estate or it is not an estate. If it is not an estate in itself, but is merely “a quality annexed to the land whereby an estate is exempt from sale under execution for debt,” as was said in Littlejohn‘s case, then there must be some estate to support the exemption. A naked right of exemption is worthless unless the debtor has some property that he can retain under the exemption, and he cannot retain that which he does not possess. This exemption gives him nothing, but simply keeps that which he already has from being taken away from him.
The idea that the homestead exemption was an estate has been long since abandoned. The theory now of universal acceptance was first clearly enunciated by Bynum, J., speaking for the Court in Bank v. Green, 78 N.C. 247, where he says, beginning on page 252: “There is some misconception as to the nature of the homestead law. The homestead is not the creation of any new estate, vesting in the owner new rights of property. His dominion and power of disposition over it are precisely the same after as before the assignment of homestead. The law is aimed at the creditor only, and it is upon him that all the restrictions are imposed; and the extent of these
It is needless to cite the numerous cases in approval. A brief quotation from one or two will be sufficient:
In Simpson v. Wallace, 83 N.C. 477, the Court says: “The assignment of a homestead creates no new estate in the exempted land; it simply ascertains and sets apart a portion of what the debtor owns, of limited value, and relieves it of liability for his debts during a specified period, leaving in him the estate already possessed unimpaired.”
In Markham v. Hicks, 90 N.C. 204, this Court says: “The argument in support of this contention (that the sheriff could sell the land subject to the homestead exemption) proceeds upon the misconception that there is a divided estate in the debtor, produced by the separation and setting apart of the exempt from the remaining land, one enduring for his own life and prolonged for the benefit of his wife and minor children, the other, the residue of his previous estate.”
The Court then held, citing with approval Bank v. Green, supra, that the estate cannot be so divided, and that the sheriff cannot sell the reversion even in the absence of statutory prohibition. Therefore it is not an estate. We cannot have a shadow without something to cast the shadow; neither can we have a quality of exemption without something to be exempted.
Some confusion may have arisen from the indiscriminate
For the homestead right to be of any benefit to a man it is evident he must own some estate in land to which it can apply. This is clearly the meaning of the Constitution. In Article X, section 2, it says: “Every homestead, and the dwellings and buildings used therewith, not exceeding in value one thousand
The assignment of the homestead adds nothing to the owner‘s title. It merely locates that part of the land which is exempt and which he continues to hold under his former
The deed of trust to secure creditors under a consideration expressly states that the land in controversy is conveyed “subject to and reserving, however, his (Blaney Joyner‘s) homestead rights therein, as secured by the laws of North Carolina.” He does not pretend to convey the so-called reversion of his homestead. On the contrary he expressly reserves all that the law would allot to him as a homestead if he had made no deed. The object of an assignment for the benefit of creditors is not to give the creditors the right to resort to the land for the payment of their debts, as that right they already have or can obtain by means of a judgment. Its object is to prevent the lien of subsequent judgments and to regulate the distribution of his assets, either by preferring such creditors as he wishes or preventing any preference. Assignments are usually made in an emergency, when there is no time to lay off the homestead. All that the debtor can do is to reserve the homestead right allowed by law. What is that right? This Court has said, in Bank v. Green, supra, that it is a “restriction imposed on the creditor; . . . that in seeking satisfaction for his debt he shall leave to the debtor untouched five hundred dollars of his personal and one thousand dollars of his real estate.” This Court has said in Simpson v. Wallace, supra, that it “leaves in him the estate already possessed unimpaired.” It is held that the reversion of the homestead cannot be sold under execution, because
When Blaney Joyner, in executing his deed in trust, reserved his homestead rights, he reserved one thousand dollars worth of the land. Assuming the land to be worth $4,000 in legal effect he conveyed to the trustee only three-fourths of the land, reserving to himself a fourth undivided interest, to which he retained the legal title. To that extent he was a tenant in common with the trustee. This unity of possession could have been severed by the assignment of the homestead, which would have been equivalent to partition. This the trustee does not seem to have done, as he sold the land in its entirety; but he could not convey any greater title than he held. Therefore the undivided fourth interest remained in Blaney Joyner, as it would have done in the case of any other tenant in common.
Under the facts as developed in this case we are of
We are further of opinion that the remainder of said land passed by said deed from said Joyner to said Warren, and from him to Mrs. Joyner, by whom it was devised to the defendants.
Error.