This is an action for possession of land, and comes before us on the appeal of defendants. There are several exceptions on the part of defendants to the rulings of the court in refusing to make new parties, and to ruling out evidence offered for the alleged purpose of showing that defendant was only a life tenant and that other parties were the owners in fee of the remainder. We have examined all these exceptions and find no error in the ruling of (145) the court below. We think they were properly overruled and disallowed. This being so, the case comes down to the question of plaintiff's title, which she claims to have been derived from defendant by three lines of conveyances:
1. Through a mortgage from the defendant to G. D. Rand, dated 30 March, 1885; from said Rand to Crowder, dated 9 January, 1888; from *Page 104 Crowder to N.M. Rand, dated 2 November, 1888; from N.M. Rand to C. H. Belvin, dated 23 January, 1892, and a deed from Belvin and wife to the plaintiff, dated 27 February, 1894.
2. By deed to J. G. Williams from defendant Bledsoe, dated 21 September, 1875, and mesne conveyances from said Williams to the plaintiff.
3. Tax title deed, dated 27 February, 1894.
But as the mortgage to Rand and the mesne conveyances thereunder cover all the land in controversy, and as we think the discussion of this chain of title will dispose of the case, we will not discuss the others. That defendant executed the mortgage to G. D. Rand is not disputed. Nor is it denied that the chain from said Rand to plaintiff is complete. But defendant was in 1885 and now is a married man, and his wife did not join him in the execution of said mortgage. And defendant contends that said mortgage deed is void for the reason that under Article X, section 8, of the Constitution of the State it conveyed no title to Rand. So a long trial, in which there are many exceptions, is narrowed down to this one point. The case states that defendant was married to his present wife in 1860 and that he acquired the land before that time. And these facts being admitted, we are of opinion that the constitutional restriction on the husband's right of alienation contained in section 8 of Article X does not apply in this case; and the mortgage deed from defendant to Rand was effective and conveyed whatever (146) estate the defendant had in the land. Sutton v. Askew, 66 N.C. 172. It is admitted that expressions — obiter — may be found in our reports that appear to conflict with this opinion. But upon examination it will be found they do not, as they were made on a different state of facts and apply to cases where the parties were married or the land acquired since the adoption of the Constitution of 1868.
If it be that there are parties interested in the remainder after the life estate of defendant Bledsoe, they are not parties to this action and will not be estopped by the judgment in this case from asserting any rights they may have after his death.
Judgment affirmed.
Cited: Cawfield v. Owens, 129 N.C. 287. *Page 105
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