In Hinsdale v. Williams, 75 N.C. 430, Pearson, C. J., for the Court, says: "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."Summary of this case from Joyner v. Sugg
June Term, 1876.
Homestead — Reversionary Interest.
The reversionary interest in a homestead cannot be sold by an administrator in a petition to make real estate assets during the minority of one of the children of the intestate.
PETITION by an administrator to make real estate assets, filed before the probate judge of CUMBERLAND, and thence carried by the appeal of the plaintiff to the Superior Court, and there heard before Buxton, J., at chambers, 12 June, 1876.
The only point involved in the appeal was the right of the administrator to sell the reversion in a homestead, one of the distributees being a minor. The probate judge decided that the same could not be sold, which judgment was affirmed by his Honor, from whose judgment the plaintiff appealed.
McRae and Broadfoot for appellant.
Sutton and Graham and T. A. McNeill contra.
It is conceded that a reversionary interest in a homestead is not subject to sale for any debt under execution. Bat. Rev., ch. 55, sec. 26. Poe v. Hardie, 65 N.C. 447.
The question presented now is whether such reversionary interest is subject to sale by an administrator under an order of court, in a proceeding to make real estate assets, to pay the debts of the (431) intestate homesteader during the minority of one of his children, who is in the enjoyment of the homestead.
The reason given why the reversionary interest of the original homesteader should not be sold in his lifetime is that the interest is an uncertain one, being for his life, and therefore the sale and purchase must be a mere speculation, and furthermore that it is against the policy of the homestead law to have the homestead disturbed by an adverse interest.
It is insisted that the first reason does not obtain here because the defendant's interest is not for life nor for any uncertain period, but until he shall arrive at the age of 21 years, which is eight years. But the plaintiff overlooks the fact that while the defendant's term cannot go beyond eight years, yet it may fall very far short of it in the event of the defendant's death. So that the interest is uncertain. It may be one year or eight years.
There are two reasons urged why an administrator ought to be allowed to sell which do not apply to a sale under execution. In the first place, it is important that the estate of deceased persons should be settled up speedily. That is undoubtedly true, and we have to choose between that evil and the evils of selling uncertain interests and of disturbing the homestead. And our determination is against the sale.
In the second place, it is urged that the statute supra against the sale of reversionary interests in homesteads is only against sales under "executions"; and such is the letter of the statute, but the purpose of the statute was to prevent forced sales of the reversionary interest under any circumstances. What difference can it make whether the sale is under an order of the court called an execution or under an order of the court called an "order of sale," or by some other name?
There is no error. (432)
An order may be taken below for the sale of the excess over the homestead, if there be any excess.
PER CURIAM. Affirmed.
Cited: Shields v. Allen, 77 N.C. 376; Jenkins v. Bobbitt, ib., 387; Gamble v. Watterson, 83 N.C. 574; Windley v. Tankard, 88 N.C. 226; Mebane v. Layton, 89 N.C. 401; Joyner v. Sugg, 131 N.C. 339, 340; S. c., 132 N.C. 589.