Action for possession of land. It is not denied that B. Justice had a good title. Both parties claim under him, and neither claims by any title superior to his. The plaintiff owns all the interest conveyed to him and E. Block. The original defendant, J. W. Gidney, has since died, and his heirs are now parties.
Facts: On 5 February, 1877, B. Justice and wife, Mahala, who died in 1886, agreed to convey by mortgage to plaintiff and E. Block a lot of land (described in the first paragraph of the complaint) containing 125 acres. On that day the defendant, Gidney, as attorney of Justice, drew a deed, and by mistake the description embraces an adjoining tract containing 200 acres, more or less.
In 1883 (the day does not clearly appear) the plaintiff brought his action against B. Justice and wife and others, entitled Wittkowsky v. Kiser et al., to have said mistake corrected. The matter was referred, and the report of the referee, finding that there was a mistake in the description, at Fall Term, 1877, was confirmed, and the mortgage of 5 February, 1877, was adjudged to be corrected according to the report and original agreement. There was a foreclosure decree of sale at the same term. Sale was made and the plaintiff (440) *Page 304 became the purchaser on 6 February, 1888, and by order a deed was made to him and registered 16 May, 1888. During the pendency of this action the defendant, J. W. Gidney, represented Justice and wife as one of their attorneys.
Both parties put in evidence a mortgage deed from B. Justice, not signedby his wife, to defendant, J. W. Gidney, and J. C. Gidney, dated and registered 10 February, 1883, conveying land described "as the homestead of B. Justice, being the lands set apart to the said B. Justice as a homestead, under an execution issued from the Superior Court of Cleveland County." The homestead return was also in evidence. The land in said return is the same as that described in the deed of 10 February, 1883. Defendant introduced another mortgage deed from Justice to him, dated 15 September, 1888, and the record of foreclosure proceedings of the said two mortgages commenced 22 July, 1890. It was shown by judgment dockets that on and prior to 10 February, 1883, there were several judgments against said B. Justice, which were, and are, still unsatisfied.
We have read thirty or forty prayers for instructions, but we find it unnecessary to discuss them. Issues were submitted, and his Honor instructed the jury that if they believed the evidence they should answer:
(1) That plaintiff is the owner of the land in dispute.
(2) That defendants unlawfully withhold possession thereof.
(3) That there was a mistake by the party in describing the land in the deed dated 5 February, 1877.
(441) (4) That defendant did not purchase the land in controversy for value and without notice of the plaintiff's equity to correct said mortgage of 5 February, 1877.
Upon these findings, judgment was entered in favor of the plaintiff.
The plaintiff has unquestionably a good title, unless the defendant has acquired a better one. So we will look to his contention. By his deed, dated 10 February, 1893, from B. Justice, without the wife's signature, the land assigned and allotted to Justice as a homestead was conveyed to him. This conveyance was invalid. The Constitution, Art. X, sec. 8, provides: "That no deed made by the owner of a homestead shall be valid without the voluntary signature and assent of his wife, signified on her private examination according to law," and all our statutes on this subject are in conformity thereto.
Whatever diversity of opinion may have been expressed by members of this Court on the homestead question, in no instance has the Court held that the homesteader, under such facts as are here presented, could convey the land set apart as his homestead without the assent of his wife, duly signified; but the Court has repeatedly held that such a conveyance is invalid and passes no interest. Markham v. Hicks, 90 N.C. 204; *Page 305 Castleberry v. Maynard, 95 N.C. 281, and a number of subsequent cases. The first-named case was a sale under an execution; the second was by the homesteader himself.
The defendant obtained another mortgage from Justice, dated 15 September, 1888. The plaintiff insists that the defendant's rights under this deed were subject to the plaintiff's legal and equitable rights, and upon investigation we find that we have to sustain the plaintiff's contention. The defendant drafted the original mortgage deed of 1877 as an attorney. He testified that he knew where the Warlick land was, and that in taking his deed he knew that Justice's homestead was a part of the (442) Warlick land. He, as an attorney, appeared and resisted the action of the plaintiff for correcting the mistake, heretofore pointed out, which action was closed by a final decree before the defendant took his last deed.
We need not discuss the principles of lis pendens, either at common law or by statute, as the above facts show that the defendant had not only constructive, but actual, notice of the pendency of plaintiff's action to perfect his title to the land now in dispute, and of plaintiff's equity.
"If anything appears calculated to excite attention and stimulate inquiry, the party is affected with knowledge of all that the inquiry would have disclosed. Bunting v. Ricks, 22 N.C. 130; 2 Pom. Eq. Jur., 680." A learned discussion of the principles of notice is found in LeNeve v.LeNeve, 2 L. C. Eq., Part I, p. 144.
A party taking with notice of an equity takes subject to that equity, and the rule of priority, which governs transfers and charges of an equitable interest, is the same as that governing transfers of legal estates; that is, that the order of date prevails. Adams' Eq., 145, 148. This rule is in analogy to the rule at law, when different liens are created by docketed judgments, levy, or otherwise, i.e., priority of date.
No ERROR.
Cited: Wynn v. Grant, 166 N.C. 45; Lynch v. Johnson, 171 N.C. 632. *Page 306
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