Was it necessary for the defendant in her answer to have specially pleaded her claim in the land as her homestead interest? If so, the evidence offered and received was irrelevant and incompetent. The rule under The Code pleading (similar to that under the old proceedings in ejectment) permits under the general issue — general denial — proof that a deed introduced as evidence of title was executed by a grantor (643) wanting in capacity, and, therefore, for that reason, void. Mobley v.Griffin, 104 N.C. 112. But the plaintiff insists that there is a recognized exception to the general rule, and that the exception is that one who seeks to avoid a deed upon the ground that the land is subject to the homestead right of the pleader must specially set up in the pleadings the facts upon which the homestead depends. The authorities relied on for the position are Marshburn v. Lashlie, 122 N.C. 237, and the kindred cases in our Reports there mentioned. But it will be seen on examination of all these cases that the deeds introduced to show title were deeds made under either judicial or execution sales. In such cases the purchasers at such sales, or their grantees, have what is called a primafacie title under their deeds — there being a presumption that the sale was properly ordered and made, and that the land was not subject to the homestead right; that it was sold for a debt, which did not exempt it from sale under section 2 of Article X of the constitution, and the decisions of this Court on that section.
In our case, however, no such presumption existed, the deed under which the plaintiff claims being one from a mortgagee made in default of the payment of the debt secured in the deed, voluntarily made by the defendant's husband, to secure an ordinary debt due in 1888, and it was permissible to offer proof to avoid the plaintiff's deed, under the general rule, under the general denial in the defendant's answer.
The main question for decision — whether the mortgage deed executed by the husband is void or only voidable — is of more importance. The plaintiff's position is, first, that as no homestead had been allotted to the husband of the defendant, before he executed the deed of mortgage, the title passed to the mortgagee under the declaration in Mayho v. Cotten,69 N.C. 289, that section 8, Art. X, of the Constitution, applies only to a conveyance of the homestead "after it has been (644) laid off"; and, second, that if that is not so, the judgment against the husband owner, and which was a lien on his land at the time of the execution of the deed of mortgage, having expired as to its lien before the sale under the mortgage deed was made, the doctrine announced in Hughes v. Hodges, 102 N.C. 236, applies, and the plaintiff's deed is good. In the last-mentioned case, a limitation was made to the broad assertion which we have quoted from Mayho v. Cotten, supra. The limitation was called by Avery, J., in his dissenting opinion in Thomas v.Fulford, 117 N.C. 667, "a further inhibition upon the right of the owner, without the joinder of the wife, to convey his land. The words of the limitation, or further inhibition upon the power of the owner of lands to convey them, as used in Hughes v. Hodges, supra, because of their importance, may properly be repeated here." The only safe rule as to the meaning of section 8, Art. X, of the Constitution, must be deduced chiefly from the two cases last cited (Mayho v. Cotten, 69 N.C. 289, and Hager v.Nixon, 69 N.C. 108). When there is no creditor, there is no reason for restricting the owner in the sale of land, not allotted as a homestead, by any construction placed upon that section, because the whole plan of homestead exemption was framed for the purpose of affording protection against debt. But it does not follow from the mere fact that a man owes debts, that section 8, Art. X, of the Constitution, is to be construed to disable him from conveying his land without the joinder of his wife, unless the deed was executed with intent to defraud his creditors and no homestead had been allotted to him, or unless the land conveyed to him is subject to the lien of a judgment or a mortgage reserving the homestead right, that can not be enforced without allotting a homestead in order to ascertain and subject to sale the excess. The rule stated in Mayho v. Cotten is so for modified, therefore, as not to apply when the owner of land is embarrassed with debt and his land is subject to be sold
to satisfy a lien. So, our conclusion is that as there was a (645) judgment in force against the husband of the plaintiff, under which execution might have issued, the deed of mortgage as to the Covington tract was void, and the expiration of the lien of the judgment could not bring into existence that which never had vitality. The Constitution, Art. X, sec. 8, plainly ordains that, "No deed made by the owner of a homestead shall be valid without the voluntary signature and assent of the wife, signified on her private examination according to law." If the deed is made otherwise, it is simply invalid, inoperative.
No error.
Cited: Dalrymple v. Cole, 170 N.C. 105.