Blaney Joyner, in 1893, executed a deed of trust to Allen Warren to secure creditors, in which was included the land in controversy, which was conveyed "subject to and reserving, however, his (Blaney Joyner's) homestead (325) rights therein, as secured by the laws of North Carolina." After due advertisement, according to the terms of the trust, the land was sold "subject to the reserved homestead right of Blaney Joyner," and was bought by R. L. Davis, with whom Blaney Joyner had arranged that it should be bought for his benefit, and the deed thereof was made by Allen Warren, trustee, to said Davis, "subject to the homestead right of Blaney Joyner," and coupled with a parol trust to convey the same to whomsoever Blaney Joyner might direct, and by direction of Blaney Joyner said Davis did convey the land, "subject to said Blaney Joyner's homestead right," to his wife, J. A. E. Joyner. Blaney Joyner and his wife united in a mortgage to secure said Davis the purchase money, which was subsequently paid off entirely by Blaney Joyner, his wife paying no part thereof. Blaney Joyner died without issue, and the plaintiffs are his heirs at law. J. A. E. Joyner died subsequently in 1901, having devised the land to her two nieces, the defendants, who are in possession of the premises.
The plaintiffs seek by this action:
1. To establish that J. A. E. Joyner took the land upon the parol agreement that she would hold the naked legal title for the use of Blaney Joyner in fee, and that he having paid off
the mortgage for the purchase money the plaintiffs, as his heirs at law, are entitled to recover the premises.
But the evidence set out in the record shows no agreement nor any acknowledgment of a parol trust by J. A. E. Joyner. The parol trust by R. L. Davis in favor of Blaney Joyner was performed by his execution of the conveyance to J. A. E. Joyner, as directed by Blaney Joyner. The mere payment of the purchase money by the latter gave the plaintiffs no rights as his heirs at law as against his wife, to whom he had a right to give the property, except as to creditors, and the creditors are all paid off.
2. The plaintiffs contend that if they cannot establish (326) the parol trust the original deed in trust to Allen Warren, "subject to the homestead right of Blaney Joyner," is void for uncertainty in both the quantity and quality of the estate, or at least the reservation included the reversion of the homestead, the wife not having joined in the deed; and that Blaney Joyner being dead the plaintiffs, as his heirs, can recover the land once covered by his homestead or which would have been so covered if it had ever been actually allotted.
We may as well frankly say that we find it impossible to fully reconcile all the decisions of this Court upon the subject. We will not try to do so, but will attempt simply to present those principles necessary for the determination of this case in the view we take of it.
This is the first time that this question has come directly before this Court as now constituted. We do not regard the case of Williams v. Scott,122 N.C. 545, as directly affecting the case at bar. In that case the homesteader neither sold nor attempted to sell the so-called reversion of the homestead. It was sold in bankruptcy proceedings, and referring thereto this Court says, on page 549: "The decree of the district court ordering a sale of the reversionary interest in the land, not having been appealed from by the bankrupt, concluded him and binds the defendants who claim under him and are privies in blood and estate." Again, the Court says, in the sentence immediately preceding: "It (the decree) was not open to collateral attack, and the decision of the district court in the matter, where it had sole jurisdiction, was and is binding on our courts." This was the law of that case.
Our earlier decisions seem based upon the idea that the homestead is an estate. This is apparent from the very sentence quoted from Jenkins v.Bobbitt, 77 N.C. 385, upon which the defendants rely, and in which JudgePearson repeatedly
uses the terms "homestead estate" and "estate in reversion." (327)
Another quotation is as follows: "But a sale by the owner of a homestead of his estate in reversion stands as at common law, and the owner has full power to sell it." With the highest respect for the great Chief Justice, who evidently regarded the homestead as a particular estate carved out of the fee, we are unable to find that the "homestead estate" had any standing at common law. If an estate at all it would seem to be a life estate in the homesteader, with a contingent remainder for an uncertain term of years to his children and an ultimate remainder or reversion back to himself if the land remains unsold, or to his grantee if sold.
One thing at least seems clear: A homestead is either an estate or it is not an estate. If it is not an estate in itself, but is merely "a quality
annexed to the land whereby an estate is exempt from sale under execution for debt," as was said in Littlejohn's case, then there must be some estate to support the exemption. A naked right of exemption is worthless unless the debtor has some property that he can retain under the exemption, and he cannot retain that which he does not possess. This exemption gives him nothing, but simply keeps that which he already has from being taken away from him.
The idea that the homestead exemption was an estate has been long since abandoned. The theory now of universal acceptance was first clearly enunciated by Bynum, J., speaking for the Court in Bank v. Green, 78 N.C. 247, where he says, beginning on page 252: "There is some misconception as to the nature of the homestead law. The homestead is not the creation of any new estate, vesting in the owner new rights of property. His dominion and power of disposition over it are precisely the same after as before the assignment of homestead. The law is aimed at the creditor only, and it is upon him that all the restrictions are imposed; and the extent of these (328) restrictions is the measure of the privileges secured to the debtor; and these restrictions imposed on the creditor are that in seeking satisfaction of his debt he shall leave to the debtor untouched $500 of his personal and $1,000 of his real estate. . . . The homestead has been called a determinable fee, but as we have seen that no new estate has been conferred upon the owner and no limitation upon his old estate imposed, it is obvious that it would be more correct to say that there is conferred upon him a determinable exemption from the payment of his debts in respect to the particular property allotted to him."
It is needless to cite the numerous cases in approval. A brief quotation from one or two will be sufficient:
In Simpson v. Wallace, 83 N.C. 477, the Court says: "The assignment of a homestead creates no new estate in the exempted land; it simply ascertains and sets apart a portion of what the debtor owns, of limited value, and relieves it of liability for his debts during a specified period, leaving in him the estate already possessed unimpaired."
In Markham v. Hicks, 90 N.C. 204
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Blaney Joyner, in 1893, executed a deed of trust to Allen Warren to secure creditors, in which was included the land in controversy, which was conveyed "subject to and reserving, however, his (Blaney Joyner's) homestead (325) rights therein, as secured by the laws of North Carolina." After due advertisement, according to the terms of the trust, the land was sold "subject to the reserved homestead right of Blaney Joyner," and was bought by R. L. Davis, with whom Blaney Joyner had arranged that it should be bought for his benefit, and the deed thereof was made by Allen Warren, trustee, to said Davis, "subject to the homestead right of Blaney Joyner," and coupled with a parol trust to convey the same to whomsoever Blaney Joyner might direct, and by direction of Blaney Joyner said Davis did convey the land, "subject to said Blaney Joyner's homestead right," to his wife, J. A. E. Joyner. Blaney Joyner and his wife united in a mortgage to secure said Davis the purchase money, which was subsequently paid off entirely by Blaney Joyner, his wife paying no part thereof. Blaney Joyner died without issue, and the plaintiffs are his heirs at law. J. A. E. Joyner died subsequently in 1901, having devised the land to her two nieces, the defendants, who are in possession of the premises.
The plaintiffs seek by this action:
1. To establish that J. A. E. Joyner took the land upon the parol agreement that she would hold the naked legal title for the use of Blaney Joyner in fee, and that he having paid off
the mortgage for the purchase money the plaintiffs, as his heirs at law, are entitled to recover the premises.
But the evidence set out in the record shows no agreement nor any acknowledgment of a parol trust by J. A. E. Joyner. The parol trust by R. L. Davis in favor of Blaney Joyner was performed by his execution of the conveyance to J. A. E. Joyner, as directed by Blaney Joyner. The mere payment of the purchase money by the latter gave the plaintiffs no rights as his heirs at law as against his wife, to whom he had a right to give the property, except as to creditors, and the creditors are all paid off.
2. The plaintiffs contend that if they cannot establish (326) the parol trust the original deed in trust to Allen Warren, "subject to the homestead right of Blaney Joyner," is void for uncertainty in both the quantity and quality of the estate, or at least the reservation included the reversion of the homestead, the wife not having joined in the deed; and that Blaney Joyner being dead the plaintiffs, as his heirs, can recover the land once covered by his homestead or which would have been so covered if it had ever been actually allotted.
We may as well frankly say that we find it impossible to fully reconcile all the decisions of this Court upon the subject. We will not try to do so, but will attempt simply to present those principles necessary for the determination of this case in the view we take of it.
This is the first time that this question has come directly before this Court as now constituted. We do not regard the case of Williams v. Scott,122 N.C. 545, as directly affecting the case at bar. In that case the homesteader neither sold nor attempted to sell the so-called reversion of the homestead. It was sold in bankruptcy proceedings, and referring thereto this Court says, on page 549: "The decree of the district court ordering a sale of the reversionary interest in the land, not having been appealed from by the bankrupt, concluded him and binds the defendants who claim under him and are privies in blood and estate." Again, the Court says, in the sentence immediately preceding: "It (the decree) was not open to collateral attack, and the decision of the district court in the matter, where it had sole jurisdiction, was and is binding on our courts." This was the law of that case.
Our earlier decisions seem based upon the idea that the homestead is an estate. This is apparent from the very sentence quoted from Jenkins v.Bobbitt, 77 N.C. 385, upon which the defendants rely, and in which JudgePearson repeatedly
uses the terms "homestead estate" and "estate in reversion." (327)
Another quotation is as follows: "But a sale by the owner of a homestead of his estate in reversion stands as at common law, and the owner has full power to sell it." With the highest respect for the great Chief Justice, who evidently regarded the homestead as a particular estate carved out of the fee, we are unable to find that the "homestead estate" had any standing at common law. If an estate at all it would seem to be a life estate in the homesteader, with a contingent remainder for an uncertain term of years to his children and an ultimate remainder or reversion back to himself if the land remains unsold, or to his grantee if sold.
One thing at least seems clear: A homestead is either an estate or it is not an estate. If it is not an estate in itself, but is merely "a quality
annexed to the land whereby an estate is exempt from sale under execution for debt," as was said in Littlejohn's case, then there must be some estate to support the exemption. A naked right of exemption is worthless unless the debtor has some property that he can retain under the exemption, and he cannot retain that which he does not possess. This exemption gives him nothing, but simply keeps that which he already has from being taken away from him.
The idea that the homestead exemption was an estate has been long since abandoned. The theory now of universal acceptance was first clearly enunciated by Bynum, J., speaking for the Court in Bank v. Green, 78 N.C. 247, where he says, beginning on page 252: "There is some misconception as to the nature of the homestead law. The homestead is not the creation of any new estate, vesting in the owner new rights of property. His dominion and power of disposition over it are precisely the same after as before the assignment of homestead. The law is aimed at the creditor only, and it is upon him that all the restrictions are imposed; and the extent of these (328) restrictions is the measure of the privileges secured to the debtor; and these restrictions imposed on the creditor are that in seeking satisfaction of his debt he shall leave to the debtor untouched $500 of his personal and $1,000 of his real estate. . . . The homestead has been called a determinable fee, but as we have seen that no new estate has been conferred upon the owner and no limitation upon his old estate imposed, it is obvious that it would be more correct to say that there is conferred upon him a determinable exemption from the payment of his debts in respect to the particular property allotted to him."
It is needless to cite the numerous cases in approval. A brief quotation from one or two will be sufficient:
In Simpson v. Wallace, 83 N.C. 477, the Court says: "The assignment of a homestead creates no new estate in the exempted land; it simply ascertains and sets apart a portion of what the debtor owns, of limited value, and relieves it of liability for his debts during a specified period, leaving in him the estate already possessed unimpaired."
In Markham v. Hicks, 90 N.C. 204, this Court says: "The argument in support of this contention (that the sheriff could sell the land subject to the homestead exemption) proceeds upon the misconception that there is a divided estate in the debtor, produced by the separation and setting apart of the exempt from the remaining land, one enduring for his own life and prolonged for the benefit of his wife and minor children, the other, the residue of his previous estate."
The Court then held, citing with approval Bank v. Green, supra, that the estate cannot be so divided, and that the sheriff cannot sell the reversion even in the absence of statutory prohibition. Therefore it is not an estate. We cannot have a shadow without something to cast the shadow; neither can we have a quality of exemption without something to be exempted.
Some confusion may have arisen from the indiscriminate (329) use of the word "homestead," as applying either to the right of exemption or the land exempted. As used in the Constitution it is evident that the homestead is the land itself. The homestead right is the right to hold and use the land free from execution for debt. In other words, the homestead is the land itself; the homestead right is the right of the owner to hold the land exempt from execution; while the homestead exemption is a quality attached to the land by virtue of said right. The homestead right may exist as a pure abstraction, but there can be neither homestead nor exemption without the land. While the exemption follows from the homestead right, it seems that when once attached it follows the land into the hands of the purchaser, while the homestead right remains in the vendor. This is no longer an open question. So whatever doubts some of us might have as to its logical correctness must yield to what has become a rule of property. Staredecisis. In any event it is not involved in this case.
For the homestead right to be of any benefit to a man it is evident he must own some estate in land to which it can apply. This is clearly the meaning of the Constitution. In Article X, section 2, it says: "Every homestead, and the dwellings and buildings used therewith, not exceeding in value one thousand
dollars, to be selected by the owner thereof, or in lieu thereof, . . . any lot in a city, . . . owned and occupied by any resident of this State, . . . shall be exempt from sale under execution." . . . And again, in section 3, it says: "The homestead, after the death of the owner thereof, shall be exempt," etc. And in section 5 it says: "If the owner of a homestead die," etc. (the italics are ours). Section 8 provides how the owner of a homestead may sell it. Throughout this entire article appears an inseparable connection between ownership and exemption.
The assignment of the homestead adds nothing to the owner's title. It merely locates that part of the land which is exempt and which he continues to hold under his former (330) title. We do not see how he can sell his land and retain a mere quality annexed to the land. We do not say that he cannot, by a proper deed, convey his land with a reservation to himself of a life estate. This would be in effect the conveyance of the remainder after the life estate. Perhaps he could further extend his reservation for the life of his wife and the minority of his children, but none of these questions are involved in this case.
The deed of trust to secure creditors under a consideration expressly states that the land in controversy is conveyed "subject to and reserving, however, his (Blaney Joyner's) homestead rights therein, as secured by the laws of North Carolina." He does not pretend to convey the so-called reversion of his homestead. On the contrary he expressly reserves all that the law would allot to him as a homestead if he had made no deed. The object of an assignment for the benefit of creditors is not to give the creditors the right to resort to the land for the payment of their debts, as that right they already have or can obtain by means of a judgment. Its object is to prevent the lien of subsequent judgments and to regulate the distribution of his assets, either by preferring such creditors as he wishes or preventing any preference. Assignments are usually made in an emergency, when there is no time to lay off the homestead. All that the debtor can do is to reserve the homestead right allowed by law. What is that right? This Court has said, in Bank v. Green, supra, that it is a "restriction imposed on the creditor; . . . that in seeking satisfaction for his debt he shall leave to the debtor untouched five hundred dollars of his personal and one thousand dollars of his real estate." This Court has said in Simpson v. Wallace, supra, that it "leaves in him the estate already possessed unimpaired." It is held that the reversion of the homestead cannot be sold under execution, because
(331) there is no reversion. Marcom v. Hicks, supra. In fact no part of the land can be sold under execution until the homestead is laid off. Upon such allotment the homestead, the land itself, is still held by the owner under his former title and cannot be touched, that is, interfered with, in any manner. The sale of the fee in reversion would of course interfere with it, and would seriously impair the homestead's former estate. If he owns the land in fee he is entitled to any rise in value subject to the liens. A thousand dollars worth of land near one of our growing towns may in a few years become so valuable as to pay off all encumbrances and leave a handsome surplus. But if the reversion has been sold he has no incentive to improve the property or render it more salable, as the result of his labor and thrift would go to the speculator who, perhaps, has bought the fee for a nominal price. Therefore not only the letter of the Constitution and the decisions of this Court, but public policy, favor the retention of the title in the man who alone can develop the property.
When Blaney Joyner, in executing his deed in trust, reserved his homestead rights, he reserved one thousand dollars worth of the land. Assuming the land to be worth $4,000 in legal effect he conveyed to the trustee only three-fourths of the land, reserving to himself a fourth undivided interest, to which he retained the legal title. To that extent he was a tenant in common with the trustee. This unity of possession could have been severed by the assignment of the homestead, which would have been equivalent to partition. This the trustee does not seem to have done, as he sold the land in its entirety; but he could not convey any greater title than he held. Therefore the undivided fourth interest remained in Blaney Joyner, as it would have done in the case of any other tenant in common.
Under the facts as developed in this case we are of (332) opinion that the plaintiffs, as heirs at law of Blaney Joyner, are the owners of an interest in the land in controversy of the value of one thousand dollars, to be estimated as of the time of the execution of the deed of trust by Blaney Joyner to Allen Warren.
We are further of opinion that the remainder of said land passed by said deed from said Joyner to said Warren, and from him to Mrs. Joyner, by whom it was devised to the defendants.
Error.