Littlejohn v. Egerton

A. husband who by parol waives his homestead and by assurances and representations that he never intends to claim his homestead, induces another to purchase the same, is not thereby estopped from afterwards . asserting his claim thereto.

Himestead — Waiver by Husband. Civil ActioN, tried at Spring Term, 1875, of Franklin Superior Court, before Watts, J. The complaint states substantially that the plaintiff J. 13. Littlejohn in October, 1868, was seized of a tract of land in Franklin County containing about 930 acres and that during the years 1867-’8, sundry judgments were obtained against-him and executions issued thereon and placed in the hands of the Sheriff subsequent to the adoption of the Constitution in 1868. The homestead and personal property exemption were allotted to said defendant on the 28th of November, 1868, in the manner prescribed by an Act ratified August 22nd, 1868; two hundred acres of said tract being set apart as a homestead. On the 30th of November, 1868, the Sheriff sold said tract by virtue of said executions and W. H. Lit-tlejohn (the son of plaintiff) purchased with notice that said homestead had been allotted, and subsequently sold the land to Yarborough, who sold to Minnitree, who sold to the defendant C. J. Egerton. That soon after said defendant obtained a deed from Min-nitree he demanded possession of the plaintiff', who had remained in possession and occupied the same as a homestead. The plaintiff being advised that he was not entitled to a homestead and apprehending litigation surrendered the possession to the defendant, and that thereafter the plaintiff was advised of his legal rights in the premises and demanded possession of that part of the land set apart as a homestead, although the same had not been allotted by motes and bounds. The defendants in their anwser insisted that the executions as set forth in the first allegation of the complaint were levied before the adoption of the Constitution of 1868, and created a lien upon said land. They further insisted that the said allottment had not been made as provided for by said Act and alleged numerous irregularities in the proceeding therefor. The defendants further insisted that plaintiff was not entitled to a homestead by reason of the lien created as'aforesaid, and that plaintiff had waived all claim to the same in consideration of a compromise agreed upon between him and certain creditors at or about the time of said Sheriff’s sale, with which agreement the plaintiff' had failed to comp!y- That said compromise was arranged by said W. H. Little-john with the consent and approval of his father, the plaintiff, J. B. Littlejohn. That before buying the property, the defendant was informed by the plaintiff that there would be no difficulty in his getting immediate possession. That defendant was a bona fide purchaser for value without notice of any claim on the part of the plaintifL The plaintiff demurred to defendants’ answer. His Honor overruled the demurrer and adjudged that defendants recover costs. The plaintiffs thereafter, to-wit; on the 2nd March, 1876, filed a petition for a Certiorari which was granted and the •case brought to this Court as on appeal by plaintiffs. cited McKethan v. lerry, 64 N. 'C. 25 ; Mayo v. Cotton, 69 N. C. 289 ; Miller v. L. L. Co., 66 N. C. 503; Mason v. Williams, Ibid, 570; ■Smith v. Hunt, 68 N. C. 482 ; Blackwood v, Jones, 4 Jones Eq. 54 ; Gunn v. Barry, 15 Wallace, 610; Sherrill v. Sherrill, 73 N. C. 8.