Branch, Ex Parte .

72 N.C. 106

• Court: Supreme Court of North Carolina
• Decided: January 5, 1875
• Status: Published

Opinion

PeaRson, C. J.

The case depends upon a single question. On the 7th of November, 1872, James G. Branch executed a deed by which lie conveyed to the defendant Keathly in trust for certain creditors, a tract of land known/as his “home place, “ except so much thereof as may be laid off and assigned as a homestead under the act of Assembly and which is expressly excepted from this conveyance.” Is this exception void because of vagueness and uncertainty %

We concur with his Honor in the opinion that the exception is operative and should be allowed to have effect by an order to lay off and assign the homestead to which James G. Branch was entitled under the statute to which reference is made. “ That is certain which can be made certain.”

This exception refers expressly to the Act of Assembly, by which provision is made for laying off and assigning homesteads, and the part so to be laid off is excepted from the operation of the deed. N otwithstanding the ingenious and learned argument of the counsel for the defendants, we do not think that the question calls for discussion. The cases referred to, in regard to certainty of description in deeds, exceptions and contracts, settle the rule that the subject must be so described as to make it capable of being identified ; and the purpose of this proceeding is to have the subject of the exception, identified in the manner provided for by the statute. The only case cited which seems to bear upon the position contended for, is Massey v. Warren, 7 Jones, 143. In that case the contest was between two sets of creditors in respect to such parts of the personal property as the law allowed poor debtors. The poor debtor had made no application to have the property allotted and the allotment registered, was not known in the proceeding and had nothing to do with it, the decision turned on the construction of Se e. 529 of the Revised Code, Chap. 45. In our case the proceeding is instituted by the widow of the debtor; she stands in his shoes, and the very purpose of the proceeding is to have the homestead laid off and identified according to the statute, so as to have the subject fitted to the description, set out in the deed made by the husband to the defendants, as being excepted from its operation and without which exception the deed would not have been executed. It is with an ill grace that while taking the benefit of the deed, the defendants seek to evade one of its express stipulations.

No error. Judgment affirmed. This will be certified.

Pee CuRiam. Judgment affirmed.