Egerton v. Jones

102 N.C. 278

Opinion

Shephekd, J.

(after stating the case). It seems to have been conceded upon the trial, that if the deeds conveying the “ homestead tract” (which was the subject of the controversy) were not declared to have been intended as a mortgage, the plaintiff would be entitled to sell the land and with the proceeds thereof pay the Cheatham judgment. This judgment against Mark P. Jones constituted a lien upon his land, and if before his marriage he conveyed it absolutely to Boyd, the latter and those claiming under him could not insist upon the homestead exemption after the death of Jones. The plaintiff, representing the judgment creditor, has, therefore, a sufficient interest in the property to entitle him to maintain the integrity of the deed as it is written; for if a clause .of redemption is supplied by parol, and the debt has been paid, as alleged by the defendants, the homestead exemption will be prolonged until the death of the widow and the attainment of the majority of the youngest child.

It would be needless to multiply the pages of the Reports by quoting largely from the numerous decisions of our Court to the effect, that in order to convert a deed absolute on its face into a mortgage “ it must be alleged, and of course proved, that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue advantage.” Streator v. Jones, 1 Murph., 449; Bonham v. Craig, 80 N. C., 224.

There is no pretence in our case that the alleged clause of redemption was omitted und^r any of the circumstances above mentioned. On the contrary, the deed seems to have been written as the parties intended. There is nothing in the testimony or pleadings which suggest any other view. The witnesses all say, in substance, that the “ homestead tract” was conveyed as an additional security for the payment of the remainder of the land which Boyd had bought at the sale by the commissioner. Whatever may be said as to a trust attaching to this land in the hands of Boyd, and the admissibility of parol testimony to establish it, can have no application to the homestead tract, the title to which was in Jones, who conveyed it to Boyd upon the alleged agreement to reconvey if the purchase' money of the other tract was paid. We think that this case falls within the principles so happily expressed by PeabsoN, C. J., in Wood v. Cherry, 73 N. C., 110, cited and approved in Shields v. Whitaker, 82 N. C., 516.

For these reasons, we are of the opinion that the objection to the testimony was well taken, and that there should be a new trial.

Error. Reversed.