Long v. . Graeber

64 N.C. 431

• Court: Supreme Court of North Carolina
• Decided: June 5, 1870
• Status: Published

Opinion

Settle, J.

Oonld Graeber, who was tenant by the curtesy consummate, sell his estate ? He professed to do so by deed in trust to secure the payment of his debts; but he now contends that the law was more careful of his interests and the rights of the issue by the marriage, than he showed himself to be, and that he, and every one else, is prohibited from selling his estate by Bev. Code, ch. 56, sec. 1, in order' that he, at all events, and perhaps his children also, may have a homestead. He seems to think that there is a magic about the Homestead which will drive off all debts, though they be secured by deed in trust or other lien. In this he is mistaken.

The principle which governs this case is laid down with great clearness in Houston v. Brown, 7 Ire. 162. The views contended for, however, in the two cases are widely different.

In Houston v. Brown the heirs at law attempted to eject the tenant by the curtesy, upon the ground that the act under consideration takes away the husband’s right to an estate by the curtesy. Here the tenant contends that the same enactment binds his estate so fast to him that neither he nor any one else can sever it.

The true purpose of the act, it is said in the case just cited, “ was to adopt to a partial extent thé principle of the homestead law, and provide a home for the wife during her life, leaving the. rights of the husband unimpaired and unrestricted after her death.” During ■ her life the husband is under certain restrictions, but “ after her death there is no intimation of an intention to interfere with his rights according to the common law.”

Pee Curiam. Judgment affirmed.