Ladd v. . Byrd
18 S.E. 666
N.C.
1893
Check Treatment
Avery, J..:

.Prior to the passage of the Act of 1870, when the reversionary interest could still be sold under execution, *469 the judgment creditor might, at his option, recognize the claim of the. debtor to a homestead by exposing to sale only such reversionary interest without affecting the validity of the sale or in any way impairing the right of the purchaser to the possession of the land on' the expiration of the prescribed period of exemption. Long v. Walker, 105 N. C., 91; Wyche v. Wyche, 85 N. C., 96; Barrett v. Richardson, 76 N. C., 423. When made expressly “subject to the homestead,” it was held that the sale was valid and “ pas-red the reversionary interest only.” In such cases it is clear that those holding under and enjoying the right of exemption,- and their assignees, are in privity with a purchaser whose right to possession is postponed by the clemency of the execution creditor, and their possession in no event becomes adverse to his claim till his right of entry and of action accrues on the termination of the exemption. Corpening v. Kincaid, 82 N. C., 202; Lowdermilk v. Corpening, 92 N. C., 333. The same principle prevails as that which governs in the case of life-tenants and remaindermen or reversioners. The statute does not run until the new claimant can maintain an action for the possession and fails to bring it. Melvin v. Waddell, 75 N. C., 361; Staton v. Mullis, 92 N. C., 623; Avent v. Arrington, 105 N. C., 377.

But in the case at bar it seems that the present plaintiff, Ladd, recovered a judgment against one Adams on an old debt, and at a sale under execution thereon, on the 2d day of August, 1868, made without allotting a homestead to the debtor, became the purchaser and took the plaintiff’s deed for the land. When, however, the plaintiff attempted to enforce his right by an action for possession, it was decided ■that Adams, the debtor under whom the present defendants claim as heirs at law, was entitled to a homestead in the land (Ladd v. Adams, 66 N. C., 164), and the plaintiff was forced to submit to judgment of nonsuit, in accordance with the view which then received the sanction of this Court; that the *470 homestead provisions of the Constitution operated retroactively. Notwithstanding the fact that the decision of the Supreme Court of the United States subsequently rendered led to the overruling of that doctrine, Adams, having had his homestead previously allotted so as to embrace the whole tract of land in controversy, continued to occupy it till his Aeath, in 1889, and since his death the defendants have held possession, claiming as heirs at law of Adams.

We think that the judgment in the former action is conclusive upon both parties to the extent only that the plaintiff (having failed to raise the Federal question by appeal to the Supreme Court of the United States) was precluded from demanding the possession till the falling in of the exemption, while the defendant and-those claiming under him were estopped from denying as against the plaintiff and those claiming under him that they occupied the land in dispute as a homestead and not in the assertion of a title adverse to that of the plaintiff, so long as the homestead right subsisted. The creditor, though he acquired a good title under the sale, has recognized by his inaction the validity of the allotment of the homestead, and is in no worse plight than if he had not proceeded to sell until Adams died, in 1889. If the sale had not been made until that time a good title would have passed, as has been expressly held by this Court. Cobb v. Halyburton, 92 N. C., 652. It would therefore be strangely inconsistent with the doctrine laid down in the eases cited, that the creditor who sold subject to the homestead, when not bound to do so, or who calmly awaited, without action, the termination of the exemption and thereby recognized its validity, was not barred when the right expired, should we hold that another creditor who did not sleep upon his rights, but was compelled to acquiesce in the ruling of the highest Court of the State, is either concluded by the adjudication that the defendant was entitled to his homestead or is barred by the lapse of time during the occupancy under the claim *471 of exemption. The judgment of nonsuit was affirmed solely upon the ground that the homestead was valid — not because the reversionary interest could not be subjected for the debt. The sale was valid, and unquestionably a good title passed to plaintiff by virtue of the Sheriff’s deed. Long v. Walker, supra. Actions for possession are conclusive as to title only where an issue involving the title is raised and passed upon by the jury. Allen v. Sallinger, 103 N. C., 14. Therefore the judgment in the former proceeding binds both parties as to the validity of the allotment of the homestead to Adams, and no further. Cobb v. Halyburlon, supra. Although the ruling of this Court in Ladd v. Adams, supra, is admitted now to have been erroneous, those who claim under and in privity with Adams will not be heard, after his enjoyment of the benefits of the exemption to which the Court declared him entitled up to the time of his death, to claim all of the advantages of an adverse holding during an occupancy which was protected by the Courts as lawful only upon the idea that it was not adverse to the claims of creditors. But it did not appear as a fact whether the homesteader Adams left surviving him any minor children or whether he left a widow. The action for possession cannot be maintained while one of the children of Adams is still a minor. Cobb v. Halyburton, supra. The homestead right having been shown to exist is presumed to continue, and the burden was upon the plaintiff to show that it had terminated. The burden is always upon the remain-derman, w'hose estate is expectant upon the determination of a life-estate, to show that his right of action had accrued by the termination of the particular estate, w'hen suit was brought. Lewis v. Mobley, 4 Dev. & Bat., 323. The plaintiff must show title good against the world, and after it appeared that Adams was entitled to homestead and had it allotted to him, and the plaintiff acquiesced in the adjudication in his favor, and it appeared that there were children of Adams surviving him, it became thereupon incumbent upon the *472 plaintiff to prove that the exemption had terminated, or the attainment of the age of twenty-one by the youngest of such children. Holdman, a witness, married Martha, a daughter of Jesse Adams (we know not when), but since the death of Adams the homesteader, in 1889, said Holdman and his wife have been in possession. Another witness bad-testified that in 1889 Adams and his wife and daughter were' living with him on the land. It does not appear whether her name'was Martha, or whether she was a daughter by the same or a different marriage. There is no testimony tending to show her to be the same person as Martha, who married Holdman and first appears upon the scene as an occupant of the land since 1889. If it had appeared that Martha was the only surviving child at the death of Adams, we could not, even then, have jumped to the conclusion that she was the same daughter who was with her mother in 1869, nor could we conclude, because she was married in 1889, that she had necessarily attained her majority (on the 7th of February, 1890), when this action was brought. The general rule is that a party whose right depends upon the death of another must either show, by direct proof, that such person is dead, or raise the presumption that he is dead by proving that he had not, been heard of in seven years. 1 Greenleaf Ev. §41. We think, in the same wa}7, that as the burden is on a plaintiff who sues, as remainderman, to offer evidence that will at least raise a presumption of the death of the life-tenant, so one who sues for the reversionary interest in a homestead must, when it appears that the homesteader has a child or children, offer testimony, not only to prove that the homesteader is dead, but that the exemption has terminated by reason of the age of the child. Besides the evidence in relation to Martha, the Judge who tried the case below, seemed to rest his ruling, in part, upon the ground that “ there was no evidence whether the children of the said Adams are yet minors.” From this statement we might reasonably infer that there *473 was evidence of the existence of other children besides Martha, though the testimony as to her was sufficient to shift the burden of proof to the plaintiff. We see no force in the suggestion of inconvenience likely to arise as to families moving out of the State, when we recollect that any person not heard of for seven years is presumed to be dead. There can be no great hardship in holding a plaintiff to the duty of complying with that rule. While, therefore, the Court erred, if we are to understand his Honor as holding that the possession of the defendants was adverse to the plaintiff, it was not error to instruct the jury that the plaintiff could not recover because the action appeared to have been prematurely brought.

The judgment is ' Affirmed.