In order to secure the payment of a debt to one John A. Harrison, the defendant executed a deed without the joinder of his wife, conveying a tract of land to him, dated 20 January, 1874, which debt was by agreement to be paid in two years from the date of the deed. The land was acquired by the defendant prior to March, 1867, and the debt was contracted subsequent to 1868. The defendant was married in 1847, and his wife is still living. They now live upon (268) the land, and have infant children. No homestead has ever been assigned, nor does the defendant own any other real estate, nor is the land worth more than one thousand dollars. On 3 May, 1877, Harrison, for a valuable consideration, transferred his debt against defendant and his interest in the land to the plaintiffs, who seek in this action to subject the land to the payment of the debt. *Page 198
The above are the facts, in brief, as found by the referee to whom the case was referred, upon which he concluded, as matter of law, that there is due the plaintiffs the sum of $489.72, and interest; that as against thefeme defendant, the deed was ineffectual to deprive her of her homestead right; that the deed conveyed the reversion, to take effect in possession after the homestead estate; and gave judgment that plaintiffs recover the debt, also for a sale of the reversionary interest in the land, unless the money is paid in three months after the confirmation of the referee's report.
The plaintiffs excepted to the report, for that the referee erred in finding as a conclusion of law that the deed was ineffectual to convey the land discharged of any claim of the wife, and that it only conveyed to Harrison a reversionary interest. The Court overruled the exception, and confirmed the report, from which the plaintiffs appealed. The defendant was married in the year 1847, and acquired title to the tract of land described in the pleadings prior to March, 1867. He contracted a debt to one John A. Harrison of $500 subsequent to the year 1868, and to secure the same, on 20 January, 1874, conveyed the land to said Harrison by deed absolute in form and with a contemporary parol agreement between them that the debt should be paid in two years in redemption of the land. The wife was not a party to the deed, and the defendant owns no other land. No homestead has been laid off to the defendant, and he has infant children living.
On 3 May, 1877, Harrison, for a valuable consideration, transferred the debt and his estate and interest in the land to the plaintiffs. The debt and interest due on 25 February, 1879, amounts to $589.62, whereof $489.72 is principal money and bears interest from that date. These facts are found by the referee, and no exception is taken thereto. The referee adjudges that the deed is effectual to convey the reversionary interest of the defendant in the land, subject to his right of homestead therein, and directs a sale unless the money due is paid in three months.
The plaintiffs except to the referee's finding that only a reversionary interest was conveyed, and that the land remained still subject to the defendant's right of homestead. The exceptions being overruled, the plaintiffs appeal.
The marriage took place, and the title vested in the defendant previous to the restoration by statute of the common law right of dower, *Page 199 and before the creation of a homestead in land. It was then in the power of the defendant by his deed to convey a full and completetitle in fee to the land. Has this absolute dominion over (271) his property been abridged by any act of subsequent legislation, or could it be under the principles of the Constitution, without the owner's consent or concurrence? The value of property consists in its use, disposition and conversion into something else, and these are the elements constituting a vested right which the legislative body can not take away except for public use, and then only on making compensation to the owner. This security is guaranteed in the Constitution of the United States, in the clause declaring the obligation of contracts inviolable.
In Sutton v. Askew, 66 N.C. 172, the right of the husband to convey his lands acquired before marriage and before the passage of the act of 27 March, 1869, extending dower to all lands whereof he may have been "seized and possessed at any time during coverture,"free from the claim of dower, was carefully considered in a long and elaborate opinion delivered by Mr. Justice Reade, and the conclusion reached was that such pre-existing right could not be impaired, and the husband's conveyance was upheld. The Court declares that the "act does not affect rights or marriages which existed before its passage."
In Williams v. Munroe, 67 N.C. 164, the husband conveyed lands in 1859, after his marriage, and, as we infer, though the fact was not expressly so stated, died after the passing of the act enlarging dower, and it was held that his wife had no claim thereto. These decisions rest upon the sanctity of vested rights under the protection of the Constitution, among which is embraced the jus disponendi or right of alienation. The principle is too deeply imbedded in the fundamental law of free governments to require vindication. If this be true in regard to dower, how can an involuntary restriction be imposed in the provisions of the homestead? We are unable to distinguish (272) between the cases in this immunity of the rights of property from legislative interferences. We are therefore of opinion that the defendant could convey his land, free alike from dower or homestead, and having exercised the right, it is now beyond his recall. But we do not mean to intimate that the homestead may not attach to the debtor's land by his own consent, and this as well by his own seeking as by the allotment by the Sheriff under the provisions of the Constitution and the act of 7 April, 1869, Bat. Rev., Chap. 138, or upon his death by such as then may be entitled.
His acquiescence in the appropriation of his lands, as a homestead, would be deemed a voluntary surrender of his absolute right of alienation, and it could not be impeached by creditors. The homestead would *Page 200 then pass to his infant children or widow, as the law directs. When he conveys before this is done, and new rights and interests are thus created, the assent to the homestead can not be given so as injuriously to affect them. In other words, as to such lands, the debtor may, if he chooses, take his homestead therein, and hold it exempt from liability; and if without doing so he conveys his estate, it passes and vests in the grantee in the same plight and freed from the further control of the grantor. This view of the case dispenses with the necessity of considering the nature of the homestead as an estate or right anterior to an assignment, and other interesting topics discussed in the argument.
The referee erred in his ruling, and the Judge erred in affirming the same, and the plaintiffs' exception must be sustained.
Reversed.
Cited: O'Connor v. Harris, 81 N.C. 284; Jenkins v. Jenkins, 82 N.C. 209;Murphy v. McNeill, Id., 224; O'Kelly v. Williams, 84 N.C. 283;Williams v. Teachey, 85 N.C. 405; Reeves v. Haynes, 88 N.C. 311;Fortune v. Watkins, 94 N.C. 314; Castlebury v. Maynard, 95 N.C. 284;Gilmore v. Hodges, 101 N.C. 387; Hughes v. Hodges, 102 N.C. 239, 249;Kelly v. Fleming, 113 N.C. 140; Kirby v. Boyette, 116 N.C. 169; Kramerv. Old, 119 N.C. 8; Walton v. Bristol, 125 N.C. 430; Joyner v. Sugg,132 N.C. 594; S. v. Darnell, 166 N.C. 302.
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