88 N.C. 310 | N.C. | 1883
The land sought to be recovered in this action belonged to the defendant, who on March 27th, 1876, conveyed the same by a deed of mortgage to Noah Brown to secure the payment of the sum of two hundred dollars then loaned to the defendant, with a power of sale to the mortgage in case of default in making payment. The equity of redemption was afterwards conveyed by the defendant to the plaintiff in a deed similar in its terms to the other.
The land was acquired by the defendant several years before the adoption of the constitution of 1868, and his marriage with his wife took place before the late civil war. The defendant's wife did not unite with her husband in executing either deed, and they have several minor children. Under the first mortgage, and pursuant to its terms, the land was sold at public sale and purchased by the plaintiff, to whom title has been made.
Upon these facts the court expressed the opinion that the plaintiff could not recover, upon what ground the record does not disclose, and in submission thereto the plaintiff took a nonsuit and appealed. *311 We suppose the ruling was made on the ground that the right to a homestead therein, it being conceded that the premises were not worth more than one thousand dollars, was not divested by the deeds executed by the defendant alone. In this we think there is error, and the ruling is in conflict with the adjudications heretofore made in this court.
In Sutton v. Askew,
Following the principle thus announced, we held in Bruce v. Strickland,
The homestead being out of the way, and the legal title vesting in the plaintiff under the deed from the mortgagee, Brown, we can perceive no obstruction to his recovery of the possession of the land. Wittkowski v.Watkins,
There is error, and the nonsuit must be set aside and a venire de novo awarded, and it is so adjudged.
This will be certified for further proceedings in the court below.
Error. Venire de novo.