was again surveyed in 1891. Surely, then, a survey made by the plaintiff in 1886, in which he settled his own beginning point, under all the circumstances shown in the evidence, ought not to be allowed to fix by reputation the boundaries of his land. The ground on which such evidence is admitted at all is that "the declarations are the natural effusions of a party who must know the truth, and who speaks upon an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth." There cannot be entire indifference in a community about matters over which there is a controversy, for, as a rule, in disputes, men take one side or the other, and, if they desire to be entirely impartial, they may not see facts through a true medium. In the first volume of Greenleaf on Evidence, at section 132, the author writes on this subject: "To avoid, therefore, mischiefs which would otherwise result, all ex parte declarations, even though made upon oath, referring to a date subsequent to the beginning of the controversy, are rejected. This rule of evidence was familiar in the Roman law; but the term 'lis mota' was there applied strictly to the commencement of the action, and was not referred to an earlier period of a controversy. But in our law the term 'lis mota' is taken in the classical and larger sense of 'controversy,' and by 'lis mota' is understood the commencement of the controversy, and not the commencement of the suit." For the error in the admission of the evidence on general reputation there must be a new trial.

In the discussion of the case we have felt called upon to consider the other questions involved in the case on appeal, feeling certain that they would be raised again in the course of the next trial, and that counsel may know our views on them.

New trial.

(131 N. C. 795)

STATE v. WISEMAN.

(Supreme Court of North Carolina. Nov. 25, 1902.)

JUSTICES OF THE PEACE JURISDICTION CRIMINAL ACTION - AMOUNT OF FINE - SUPERIOR COURT-APPELLATE JURISDICTION.

1. Const. art. 4, § 27, limits the criminal jurisdiction of justices of the peace to cases where the fine cannot exceed $50. Acts 1901, c. 182, § 2, provides that the fine for permitting stock to run at large may reach the sum of $10 per head. In an action thereunder before a justice defendant was fined only $16, though the fine might have exceeded the constitutional limit. Held, that the justice had no jurisdiction.

2. Where a justice of the peace had no jurisdiction of a criminal case tried before him, owing to the amount involved, the superior court could acquire no jurisdiction on appeal.

Appeal from superior court, Mitchell county; Starbuck, Judge.

A criminal action against S. Wiseman for permitting stock to run at large was dis

2. See Criminal Law, vol. 15, Cent. Dig. 2573.

missed by the court, and the state appeals. Affirmed.

The following is the agreed statement of facts on appeal:

Since the trial in the superior court, the warrant and judgment of the justice of the peace have been misplaced, and cannot be found. The warrant upon which the defendant was arrested and tried was drawn in due form, under section "one," chapter 182, of Acts of 1901, and charged that defendant did on May 1, 1902, willfully and intentionally allow about 10 head of hogs to run at large off his premises in Mitchell county, N. C. The words in quotation are the exact words set out in the warrant. The body of the judgment rendered by the justice of the peace, and which was indorsed on the warrant, was in words and figures as follows: "Defendant found guilty. Fined, for 8 hogs, at $2 per head, $16.00. Costs, $2.50." The evidence in the superior court shows that the defendant in the month of May, 1902, allowed 8 hogs to run at large at the same time; the hogs being in one drove or gang. The court, upon motion, arrested the judgment and dismissed the action for want of jurisdiction, inasmuch as the maximum fine for the offense charged, and for which defendant was convicted, was, according to section 2 of said chapter, more than $50. The solicitor excepted and appealed.

The Attorney General, for the State.

FURCHES, C. J. This is a criminal action commenced before a justice of the peace under chapter 182, Acts 1901. The warrant charges that the defendant allowed 10 hogs to run at large off his premises, in violation of the provisions of the first section of said act. And the second section thereof is in the following language: "That any person or persons violating the provisions of section 1 of this act shall be guilty of a misdemeanor, and upon conviction shall be fined not less than two dollars nor more than ten dollars for each and every offense, for each head of stock so allowed to run at large." The defendant was found guilty in the justice's court of allowing eight head of hogs to run at large off his premises in violation of said act, and was fined $2 for each hog, making $16. The defendant appealed from this judgment to the superior court, where he was again tried upon the same warrant, and was again found guilty. But the court arrested the judgment and dismissed the action for want of jurisdiction, and the state appealed.

This statute makes a violation of section 1 a misdemeanor, and does not prescribe any punishment, except as to each hog. But article 4, § 27, of the constitution, fixes the jurisdiction of justices of the peace, and limits it in criminal matters to cases in which the fine cannot exceed $50, or the Imprisonment 30 days. And under this statute the fine is limited to $10 for each hog. "The fine shall

L. M. Scott, for appellant. J. A. Barringer, for appellees.

But the state contends that the superior court had jurisdiction of the offense, and, the case having been carried to that court by appeal, that gave the superior court jurisdiction of this offense, and it should have proceeded to judgment. This would have been so if there had been a bill sent in that court, and found "A true bill," as in State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 Am. St. Rep. 810. The jurisdiction of the supe rior court would then have arisen upon the bill of indictment, and not by virtue of the warrant of the justice of the peace. The justice of the peace had no jurisdiction. The warrant itself showed that, and ousted him of jurisdiction; and, as it gave him none, it could give the superior court none. While the superior court has jurisdiction of such violations of the criminal law as that charged against the defendant, it had no jurisdiction over the defendant until he was properly before the court, upon a bill found, or by appeal from a justice of the peace, who had jurisdiction to try and punish the defendant. In cases where bills are found in the superior court, its jurisdiction is original. But in cases of appeal from justices of the peace, its jurisdiction is derivative, and it has no more or greater jurisdiction than the justice of the peace had; and, if the justice had none, the superior court had none. It was in fact trying the defendant on a piece of paper containing a charge against him for violating the criminal law of the state, but without its being authorized by a grand jury or a justice of the peace having jurisdiction of the offense, and therefore not authorized to prefer the charge or to try the case, and the appeal conferred no jurisdiction on the superior court.

We see no error, and the judgment is affirmed.

(131 N. C. 350)

J. A. FAY & EAGAN CO. v. CAUSEY et al. (Supreme Court of North Carolina. Nov. 25,

1902.)

PRINCIPAL AND AGENT-AGENT'S AUTHORITY -PAYMENT-EVIDENCE-SUFFICIENCY.

1. An agreement by an agent selling machinery that payment might be made in lumber was not binding on the principal, where not ratified.

2. In an action on notes, evidence examined, and held not to support the defense of payment in goods, under an alleged agreement with plaintiff's agent.

Appeal from superior court, Guilford county; Shaw, Judge.

Action by the J. A. Fay & Eagan Company against H. C. Causey and others. From a

MONTGOMERY, J. The execution of the two notes sued on was admitted, and payment was set up as a defense in the answer. On the trial the defendants undertook to prove that payment was made in lumber. The sale of the machinery for which the notes were given in part was made by J. H. Burgess, an agent. The defendant Causey was examined as a witness in his own behalf, and testified that he and the agent agreed that a part of the purchase money (without stating how much) might be paid in lumber, and that about that time a lot of lumber was shipped to Burgess. That was an agreement not binding on the principal, unless it was authorized by the principal; and there was no evidence tending to show that such authority had been given, or that it had been ratified. The witness said that at the time Burgess received the lumber he said nothing about being agent. Neither was there any evidence that any lumber was ever paid as a credit on the notes which are the subject of this action. Burgess did testify that he was authorized to receive payment of the notes in lumber, but not to sell in the first place for lumber; but nowhere does he say that he received anything-lumber or money-on these particular notes. He said that after he had received the lumber he "accounted to Mr. Causey for it, and paid off one or two of his notes, and gave them. I accounted to the company so as to get these papers turned over. I received the lumber on this account for Eagan & Co. I got the lumber as far back as 1892." So it is clear from this witness' testimony that such of the notes given for the machinery (there were three), and which had been paid in lumber, were turned over to Causey by Burgess; and as the notes (two) sued on were never in the hands of the defendant, but in the plaintiff's possession, the payment of them was not the matter about which the witness was testifying. The letters of the defendants, too, support the witness Burgess on that point.

On the 14th December, 1892, several weeks after the lumber had been delivered to Burgess, the defendant Wall wrote to the company, asking how much was due on the notes, and was informed that there were three notes unpaid,-two of $100 each, and one of $75. In reply to the letter containing that information, Wall wrote that there had been some trouble about some knives belonging to the machinery not having been delivered, but that, if the company would deduct $25 for the knives, there would be no more trouble about the accounts. But a series of letters from the company to the defendants, of dates May 26, 1893, June 30, 1893, and July 5, July 8, and July 21, 1893, are

sent to the defendants, making demands for the payment of the three notes. These letters also show that the defendants were claiming payment in lumber to Burgess. On August 3d following, the defendants sent to the plaintiffs a check for $105.83, and asked that the same be placed to their credit on the machine bought from Burgess; and on September 15th following, they sent $11.60, with the request to place the same on the machine bought from Burgess. The testimony of the defendants, the correspondence between them and the plaintiffs, and the testimony of Burgess, all taken together, explain the whole transaction, and show that there is no evidence that any payment was ever made on the two notes sued on, except the credit of $11.60 on the $100 note, either in lumber or in money. The first instruction asked by the plaintiffs ought, therefore, to have been given.

Error.

(131 N. C. 324)

JOYNER et al. v. SUGG et al. (Supreme Court of North Carolina. Nov. 25, 1902.)

DEED IN TRUST-RESERVATION OF HOMESTEAD RIGHTS - PROPERTY CONVEYED MORTGAGE ON WIFE'S LAND-PAYMENT BY HUSBAND-RIGHTS OF PARTIES.

1. The mere fact that a husband who had united in a mortgage of certain land, the legal title of which was held by his wife, subsequently paid off the entire indebtedness himself, his wife paying no part thereof, gave him and his heirs no right to the land as against the wife. Per Douglas, J., and Furches, C. J.

2. A deed of land in trust, "subject to and reserving, however, his [the grantor's] homestead rights therein." etc., passed the entire land, except $1,000 worth thereof. Per Douglas and Cook, JJ.

3. A deed of land in trust, "subject to and reserving, however, his [the grantor's] homestead rights therein," etc., passed the entire land, subject only to "a determinable exemption from the payment of the homesteader's debts"; and, upon the determination of that exemption by the latter's death, there was nothing left for his heirs at law. Per Clark and Montgomery, JJ.

Appeal from superior court, Pitt county; Winston, Judge.

Action by J. H. Joyner and others against Mary A. Sugg and others. Judgment for defendants, and plaintiffs appeal. Reversed.

Skinner & Whedbee, for appellants. Jarvis & Blow and Connor & Son, for appellees.

DOUGLAS, J. Blaney Joyner in 1893 executed a deed of trust to Allen Warren to secure creditors, in which was included the land in controversy, which was conveyed "subject to and reserving, however, his [Blaney Joyner's] homestead rights therein as secured by the laws of North Carolina." After due advertisement according to the terms of the trust, the land was sold "subject to the reserved homestead right of Blaney Joyner," and was bought by R. L. Davis, with whom Blaney Joyner had arran

ged that it should be bought for his benefit; and the deed thereof was made by Allen Warren, trustee, to said Davis, "subject to the homestead right of Blaney Joyner,” and coupled with a parol trust to convey the same to whomsoever Blaney Joyner might direct, and by direction of Blaney Joyner said Davis did convey the land, "subject to said Blaney Joyner's homestead right," to his wife, J. A. E. Joyner. Blaney Joyner and his wife united in a mortgage to secure said Davis the purchase money, which was subsequently paid off entirely by Blaney Joyner, his wife paying no part thereof. Blaney Joyner died without issue, and the plaintiffs are his heirs at law. J. A. E. Joyner died subsequently, in 1901, having devised the land to her two nieces, the defendants, who are in possession of the premises.

The plaintiffs seek by this action:

1. To establish that J. A. E. Joyner took the land upon the parol agreement that she would hold the naked legal title for the use of Blaney Joyner in fee, and that, he having paid off the mortgage for the purchase money, the plaintiffs, as his heirs, are entitled to recover the premises. But the evidence set out in the record shows no agreement, nor any acknowledgment of a parol trust by J. A. E. Joyner. The parol trust by R. L. Davis in favor of Blaney Joyner was performed by his execution of the conveyance to J. A. E. Joyner as directed by Blaney Joyner. The mere payment of the purchase money by the latter gave the plaintiff's no rights as his heirs at law, as against his wife, to whom he had a right to give the property, except as to creditors, and the creditors are all paid off.

2. The plaintiffs contend that, if they cannot establish the parol trust, the original deed in trust to Allen Warren, "subject to the homestead right" of Blaney Joyner, is void for uncertainty in both the quantity and quality of the estate, or at least the reservation included the reversion of the homestead, the wife not having joined in the deed, and that, Blaney Joyner being dead, the plaintiff's, as his heirs, can recover the land once covered by his homestead, or which would have been so covered if it had ever been actually allotted.

We may as well frankly say that we find it impossible to fully reconcile all the decisions of this court upon the subject. We will not try to do so, but will attempt simply to present those principles necessary for the determination of this case in the view we take of it. This is the first time that this question has come directly before this court as now constituted. We do not regard the case of Williams v. Scott, 122 N. C. 545, 29 S. E. 877, as directly affecting the case at bar. In that case the homesteader neither sold nor attempted to sell the so-called reversion of the homestead. It was sold in bankruptcy proceedings, and, referring thereto, this court says on page 549, 122 N. C., and

page 878, 29 S. E.: "The decree of the district court ordering a sale of the reversionary interest in the land, not having been appealed from by the bankrupt, concluded him, and binds the defendants, who claim under him, and are privies in blood and estate." Again the court says in the sentence immediately preceding: "It [the decree] was not open to collateral attack, and the decision of the district court in the matter, where it had sole jurisdiction, was and is binding on our courts." This was the law of that case. Our earlier decisions seem based upon the idea that the homestead is an estate. This is apparent from the very sentence quoted from Jenkins v. Bobbitt, 77 N. C. 385, upon which the defendants rely, and in which Judge Pearson repeatedly uses the terms "homestead estate" and "estate in reversion." Another quotation is as follows: "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." With the highest respect for the great chief justice, who evidently regarded the homestead as a particular estate carved out of the fee, we are unable to find that the "homestead estate" had any standing at common law. If an estate at all, it would seem to be a life estate in the homesteader, with a contingent remainder for an uncertain term of years to his children, and an ultimate remainder or reversion back to himself if the land remains unsold, or to his grantee if sold. One thing, at least, seems clear: A homestead is either an estate, or it is not an es tate. If it is not an estate in itself, but is merely "a quality annexed to land, whereby an estate is exempt from sale under execution for debt," as was said in Littlejohn's Case, 77 N. C. 379, then there must be some estate to support the exemption. A naked right of exemption is worthless, unless the debtor has some property that he can retain under the exemption, and he cannot retain that which he does not possess. This exemption gives him nothing, but simply keeps that which he already has from being taken away from him. The idea that the homestead exemption was an estate has been long since abandoned. The theory now of universal acceptance was first clearly enunciated by Bynum, J., speaking for the court, in Bank v. Green, 78 N. C. 247, where he says, beginning on page 252: "There is some misconception as to the nature of the homestead law. The homestead is not the creation of any new estate, vesting in the owner new rights of property. His dominion and power of disposition over it are precisely the same after as before the assignment of homestead. The law is aimed at the creditor only, and it is upon him that all the restrictions are imposed, and the extent of these restrictions is the measure of the privileges secured to the debtor; and these restrictions imposed on the creditor are that, in seeking satisfaction of his debt, he shall leave to the debtor, un

touched, $500 of his personal and $1,000 of his real estate. * * The homestead has been called a 'determinable fee,' but as we have seen that no new estate has been conferred upon the owner, and no limitation upon his old estate imposed, it is obvious that it would be more correct to say that there is conferred upon him a determinable exemption from the payment of his debts in respect to the particular property allotted to him."

It is needless to cite the numerous cases in approval. A brief quotation from one or two will be sufficient: In Simpson v. Wallace, 83 N. C. 477, the court says: "The assignment of a homestead creates no new estate in the exempted land. It simply ascertains and sets apart a portion of what the debtor owns, of limited value, and relieves it of liability for his debts during a specified period, leaving in him the estate already possessed unimpaired." In Markham v. Hicks, 90 N. C. 204, this court says: "The argument in support of this contention [that the sheriff could sell the land subject to the homestead exemption] proceeds upon the miscon ception that there is a divided estate in the debtor, produced by the separation and setting apart of the exempt from the remaining land; one enduring for his own life, and prolonged for the benefit of his wife and minor children; the other, the residue of his previous estate." The court then held, citing with approval Bank v. Green, supra, that the estate cannot be so divided, and that the sheriff cannot sell the reversion even in the absence of statutory prohibition. Therefore it is not an estate. We cannot have a shadow without something to cast the shadow. Neither can we have a quality of exemption without something to be exempted.

Some confusion may have arisen from the indiscriminate use of the word "homestead" as applying either to the right of exemption or the land exempted. As used in the constitution, it is evident that the homestead is the land itself. The homestead right is the right to hold and use the land free from execution for debt. In other words, the homestead is the land itself, the homestead right is the right of the owner to hold the land exempt from execution, while the homestead exemption is a quality attached to the land by virtue of said right. The homestead right may exist as a pure abstraction, but there can be neither homestead nor exemption without the land. While the exemption follows from the homestead right, it seems that when once attached it follows the land into the hands of the purchaser, while the homestead right remains in the vendor. This is no longer an open question. So, whatever doubts some of us might have as to its logical correctness must yield to what has become a rule of property. Stare decisis. In any event, it is not involved in this case. For the homestead right to be of any benefit to a man, it is evident he must own

some estate in land to which it can apply. This is clearly the meaning of the constitution. In article 10, § 2, it says: "Every homestead and the dwellings and buildings used therewith, not exceeding in value one thousand dollars, to be selected by the owner thereof or in lieu thereof

any lot upied by shall be

*

in a city * ** owned and ooo any resident of this state * exempt from sale under execution. And again, in section 3, it says: "The homestead, after the death of the owner thereof, shall be exempt," etc. And in section 5 it says: "If the owner of a homestead die," etc. (The italics are ours.) Section 8 provides how the owner of a homestead may sell.

Throughout this entire article appears an inseparable connection between ownership and exemption.

The assignment of the homestead adds nothing to the owner's title. It merely locates that part of his land which is exempt, and which he continues to hold under his former title. We do not see how he can sell his land, and retain a mere quality annexed to the land. We do not say that he cannot by a proper deed convey his land, with a reservation to himself of a life estate. This would be, in effect, the conveyance of the remainder after the life estate. Perhaps he could further extend his reservation for the life of his wife and the minority of his children, but none of these questions is involved in this case. The deed of trust to secure creditors, under consideration, expressly states that the land in controversy is conveyed "subject to and reserving, however, his [Blaney Joyner's] homestead rights therein as secured by the laws of North Carolina." He does not pretend to convey the so-called reversion of his homestead. On the contrary, he expressly reserves all that the law would allot to him as a homestead if he had made no deed. The object of an assignment for the benefit of creditors is not to give the creditors the right to resort to the land for the payment of their debts, as that right they already have, or can obtain by means of a judgment. Its object is to prevent the lien of subsequent judgments, and to regulate the distribution of his assets, either by preferring such creditors as he wishes, or preventing any preference. Assignments are usually made in an emergency, when there is no time to lay off the homestead. All that the debtor can do is to reserve the homestead right allowed by law. What is that right? This court has said in Bank v. Green, supra, that it is a "restriction imposed on the creditor, *

that in seeking satisfaction

for his debt he shall leave to the debtor untouched five hundred dollars of his personal and one thousand dollars of his real estate." This court has said in Simpson v. Wallace, supra, that it "leaves in him the estate already possessed, unimpaired." It is held that the reversion of the homestead cannot be sold under execution, because there is no

fact, no part of the land can be sold under execution until the homestead is laid off. Upon such allotment the homestead-the land itself is still held by the owner under his former title, and cannot be touched; that is, interfered with in any manner. The sale of the fee in reversion would, of course, interfere with it, and would seriously impair the homesteader's former estate. If he owns the land in fee, he is entitled to any rise in value, subject to the liens. A thousand dollars' worth of land near one of our growing towns may in a few years become so valuable as to pay off all incumbrances and leave a handsome surplus. But if the reversion has been sold, he has no incentive to improve the property or render it more salable, as the result of his labor and thrift would go to the speculator, who perhaps has bought the fee for a nominal price. Therefore not only the letter of the constitution and the decisions of this court, but public policy, favor the retention of the title in the man who alone can develop the property.

When Blaney Joyner, in executing his deed in trust, reserved his homestead rights, he reserved $1,000 worth of the land. Assuming the land to be worth $4,000, in legal effect he conveyed to the trustee only threefourths of the land, reserving to himself a fourth undivided interest, to which he retained the legal title. To that extent he was a tenant in common with the trustee. This unity of possession could have been severed by the assignment of the homestead, which would have been equivalent to partition. This the trustee does not seem to have done, as he sold the land in its entirety, but he could not convey any greater title than he held. Therefore the undivided fourth interest remained in Blaney Joyner, as it would have done in the case of any other tenant in common. Under the facts as developed in this case, we are of opinion that the plaintiffs, as heirs at law of Blaney Joyner, are the owners of an interest in the land in controversy of the value of $1,000, to be estimated as of the time of the execution of the deed of trust by Blaney Joyner to Allen Warren. We are further of opinion that the remainder of said land passed by said deed from said Joyner to said Warren, and from him to Mrs. Joyner, by whom it was devised to the defendants.

Error.

FURCHES, C. J. (concurring). On the 5th day of September, 1893, Blaney Joyner made and executed a deed of trust to one Allen Warren upon the land in controversy, containing about 450 acres, and worth, according to the evidence, somewhere about $4,000. Blaney at the time of making the trust was a married man; Jackey Ann Eliza Joyner being his wife, who did not join in the making of said deed of trust, and never signed or acknowledged the execution thereof. This land