Wilson County NcArchives Court.....W.E. Robbins & Wife, Elizabeth Dixon, Administratrix Of J.P. Dixon V. 1894
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Source: North Carolina Reports February Term
Written: 1894

Elizabeth Dixon, Administratrix of J.P. Dixon v. W.E. Robbins & Wife

Mortgage-Privy Examination of Wife of Mortgagor-Mortgage of Land Without 
Joinder of Wife of Mortgagor-Homestead

1. The privy examination of a wife, as to the execution by her of a deed, 
taken in one county by a justice of the peace resident in another county, is 
invalid.

2. The privy examination of a wife of a grantor of land is not necessary to 
bar the contingent right of dower in land where the marriage took place in 
1857 and the land was acquired in 1861.

3. Mortgage of lands by one indebted at the time bars any homestead right 
therein without the joinder and privy examination of the wife, if the 
homestead had not been allotted and there were no docketed judgments upon 
which the homestead could be allotted.

Action to foreclose a mortgage, tried before Hoke, J., and a jury, at Fall 
Term, 1893, of Wilson.

The defendants resisted the sale of the lands conveyed in the mortgage upon 
the ground that the conveyance was inoperative because the wife did not join 
in the same.

In response to the issues submitted on the trial the jury found that the 
homestead in the lands had not been allotted when the mortgage was made, that 
the male defendant was then embarrassed with debts which he has not paid off, 
that there was one docketed judgment against him at the time which is now held 
by the plaintiff, who offers to cancel the same, that the defendants were 
married in 1857, and that one of the two tracts of land conveyed in the 
mortgage was acquired in 1861, and the other in 1880, and that the Justice of 
the Peace who took in Nash County the privy examination of the wife as to the 
execution by her of the mortgage was a resident and Justice of the Peace of 
Edgecombe County.

Judgment was rendered against both the defendants for the sum demanded in the 
complaint and for the sale of the lands - the tract acquired in 1861 to be 
sold free from any claim of homestead, and that acquired in 1880 to be sold 
subject to the contingent right of dower of the feme defendant. From this 
judgment the defendants appealed.

Mr. D. Worthington for defendants (appellants)
No counsel contra

[NC Supreme Court]
Clark J. The privy examination of the wife taken in Nash County before a 
Justice of the Peace of Edgecombe was invalid. Williams v. Kerr, 113 NC, 306; 
Ferebee v. Hinton, 102 NC, 99. 

The sixty-five acre tract of land was acquired in 1861, and the fifty-acre 
tract in 1880, while the marriage was in 1857. His Honor properly held that no 
privy examination was necessary to bar the contingent right of dower as to the 
first tract, and that as to the latter the sale under foreclosure was to be 
made subject to such contingent right. Castlebury v. Maynard, 95 NC, 281.

The homestead had not been allotted in these lands when the mortgage was made, 
hence the wife's joinder in the deed was not necessary to bar the homestead 
right therein, although the grantor was indebted at the time. Hughes v. 
Hodges, 102 NC, 236.

It is true that decision holds that the conveyance to bar homestead would not 
be good without the wife's signature and privy examination when there was a 
docketed judgment upon which the homestead could be allotted, but here the 
only docketed judgment, when the mortgage was executed, is held by the 
mortgagee, the plaintiff in this action, who offers on the trial to cancel 
said judgment.

It was doubtless merely an inadvertence that judgment was rendered against the 
wife personally for the amount of the debt. Pippen v. Wesson, 74 NC, 437. In 
that respect the judgment must be modified.

Modified and Affirmed

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