Littlejohn v. . Egerton , 76 N.C. 468 ( 1877 )

The question presented by the pleadings is this: Can a husband who by parol waives his homestead and by assurances and representations that he never intends to claim a homestead induces persons to buy the land at full price including the homestead, afterwards change his mind and claim the homestead, or is he estopped by matter in pais because the successive purchasers would be injured by his false assurances and misrepresentations?

The Constitution Art. X § 8, permits a husband to dispose of his homestead by deed provided the wife signs the deed "and is privily examined according to law." So the idea of an estopped by matter in pais is out of the question.

We declare our opinion to be that the plaintiffs are entitled to a homestead, but we cannot give judgment or order a writ of possession for the reason that it appears by the complaint that a homestead has not been assigned by "metes and bounds." And the allegations in the answer; that the assessment was in many respects irregular; that it is greatly in excess of the sum of $1000; and that it was not registered until 1873, after these several sales had been consummated which are admitted by the demurrer, show that a homestead has not been duly assigned.

So we cannot order a writ of possession until the plaintiffs have the homestead assigned according to law by metes and bounds and a certified copy is filed in this Court, when the plaintiffs will have leave to move for a writ of possession.

There is error. The plaintiffs may proceed as they are advised.

PER CURIAM. Judgment reversed.