#### M. G. DALRYMPLE v. T. W. COLE.

(Filed 25 October, 1911.)

1. Pleadings — Demurrer—Allegations of Pleading Attacked — Extrinsic Matters.

The pleading to which a demurrer has been filed must itself present the defects against which the demurrer is directed'and the latter must stand or fall by the facts alleged in the pleading attacked; and extraneous matters cannot be relied on to show its deficiencies.

2. Same — Findings by Court — Contracts to Convey — Married Women —Liens—Homestead Reserved by Deed.

A demurrer to a pleading which depends upon averments made therein to supply deficiencies in the pleading attacked is a “speaking demurrer,” and will be overruled; nor can the demurrer be aided by any findings of fact made by the trial judge to which exception has been taken. The principle when objection is made by demurrer to the complaint, in an action to enforce specific performance of a contract to convey land, because the wife does not join in the conveyance, when there are existing judgment liens and liens by mortgage reserving a homestead, discussed and applied by Walker, J., citing and distinguishing Hughes v. Hodges, 102 N. C., 287, and Fleming v. Graham, 110 N. C., 374, and similar cases.

Appeal from Goohe,'J., at April Term, 1911, of Mooke.

Tbis action was brought to compel tbe specific performance of a contract to convey land, and was beard below upon a demurrer to tbe complaint, wbicb alleged: “That on 15 October, 1910, tbe defendant, for a valuable consideration, contracted and agreed in writing witb tbe plaintiff to make, execute, and deliver to tbe plaintiff, bis beirs and assigns, a good and sufficient deed of conveyance to tbe tract of land described in tbe complaint, witb covenants of warranty, upon tbe payment to tbe defendant of tbe sum of $1,400, tbe purchase price agreed upon, within ninety days from tbe date of tbe contract; that tbe contract was duly recorded, and within tbe ninety days fixed in thp contract tbe plaintiff notified tbe defendant that be elected to take and purchase tbe land in accordance witb tbe terms of tbe contract, and would tender tbe $1,400 within tbe *354ninety days, and tbat be did actually tender said sum witbin tbe ninety days and demand tbat tbe defendant make, execute, and deliver a deed in accordance witb the terms of tbe contract, but tbat tbe defendant neglected, failed, and refused to execute and deliver tbe deed; and tbat tbe plaintiff ig still ready, able, and willing to comply witb tbe terms of tbe contract and pay tbe purchase money, upon tbe execution and delivery of tbe deed. Tbat after tbe execution of said contract tbe plaintiff actually paid or assumed tbe payment of $133.65 for tbe benefit of tbe defendant, which sum, it was agreed by tbe defendant, should be applied, pro tanto, to tbe purchase price of the lands, under tbe contract.” It was further alleged in tbe complaint tbat, at tbe time of tbe tender of tbe purchase money and tbe demand tbat tbe defendant execute and deliver the deed, there were mortgages executed by tbe defendant and bis wife to certain parties named in tbe complaint and duly recorded in Moore County, which were and are liens on tbe land, and also a judgment docketed against tbe defendant, which was also a lien on said land, in favor of Mrs. S. D. Cole, tbe plaintiff in tbe judgment, and against tbe defendant for tbe sum of $100, witb interest and costs. .The case on appeal states: “Tbe court finds as a fact tbat tbe judgment referred to in tbe complaint was docketed 6 May, 1910.”

Tbe defendant demurred upon tbe following ground: “Tbat a cause of action is not alleged in tbe complaint, in tbat it appears upon tbe face of tbe complaint tbat tbe defendant is, and was at tbe time of tbe execution of tbe alleged contract referred to in tbe complaint, a married man, and tbat defendant’s wife did not join in tbe execution of said alleged contract, and at tbe time of tbe execution of said alleged contract there was a docketed judgment as well as recorded mortgages, both liens thereon, and tbat execution could have been issued upon said docketed judgment, and tbe alleged contract is, therefore, void and inoperative.”

It was admitted upon tbe argument of tbe demurrer tbat tbe defendant was, at tbe time of tbe execution of tbe contract, and still is, a married man. Tbat admission also appears upon tbe face of tbe complaint.

*355At tbe bearing, and upon consideration of tbe demurrer, wbicb was ore tennis, tbe court-sustained tbe same and dismissed tbe action of tbe plaintiff, and be appealed.

U. L. Sfence and G-. W. McNeill for plaintiff.

H. F. S'eawell and B. L. Burns for defendant.

Walker, J.,

after stating tbe case: Tbe defendant demurred to tbe complaint upon tbe ground tbat it appeared therefrom tbat tbe plaintiff was a married man at tbe time tbe contract was made, tbat bis wife is living, and tbat at said time there was a judgment against him wbicb was duly docketed in tbe Superior Court and constituted a lien on bis real estate, and tbat as execution could have been issued on tbe judgment at any time after it was docketed, tbe contract was void, for tbe reason tbat it was an executory agreement to convey bis land, and this could not be done, as be was entitled to a homestead and bis wife bad not joined in tbe execution of tbe contract with, privy examination, relying upon tbe provision of tbe Constitution (Art. X, see. 8) forbidding any disposition of.the homestead, except by deed of tbe homesteader and “tbe voluntary signature and assent of bis wife [thereto, wbicb shall be] signified on her private examination, according to law.”

It was said by Justice Avery in Hughes v. Hodges, 102 N. C., 237 : “As between tbe creditor having a lien on tbe one side, and tbe debtor and bis family on tbe other, tbe Constitution does create a right to a borne for tbe benefit of tbe debtor’s family in bis lands — a borne tbat may never be marked out by metes and bounds. Tbe debts may be discharged before tbe homestead is allotted, and then tbe inchoate right, as applied to tbe debtor’s land, no longer exists. But when tbe creditor reduces bis claim to judgment, tbe law places him and tbe debtor at arm’s length and frustrates every effort of either to evade tbe section of tbe Constitution tbat gives tbe wife tbe veto power, by requiring an allotment of tbe homestead as antecedent to any sale, and her assent, with privy examination, before tbe improvident husband can dispose of it; so, if tbe debtor sells to defraud bis creditor, when tbe latter moves in tbe court to set aside bis deed and subject tbe land to bis claim, *356tbe Constitution gives first the right' to an undefined homestead, and the law, made in pursuance of the Constitution, ascertains its bounds as soon as he seeks to sell.” He further says: “Until the owner contracts debts, there can be no undefined homestead right attaching to his land, and, unless his homestead has already been allotted, section 8, Article X of the Constitution, does not restrict his power to convey. If, however, the homestead • has once been laid off at the instance of creditors, though the debts may be discharged, the restriction remains, and renders the joinder of the wife essential to a valid conveyance, of it. The definition given in Adrian v. Shaw must be considered as modified and restricted in its application so as to conform to the views we have expressed in this opinion.”

In the defendant’s appeal in Hughes v. Hodges, at p. 262, Justice Avery, for the Court, thus sums up the law: “The presumption of law is in favor of the validity of this and every other deed executed in due form. If the defendant seeks to have it declared void, because it was made in disregard of the requirements of section 8, Article X of the Constitution, the burden is upon him to show that the homestead right attached to the land and vitiated the conveyance, for the want of the joinder of the wife, with privy examination, for one of the three following reasons: (1) That a homestead had been allotted to him in the land described in the mortgage deed, either on his own petition or by an officer in accordance with law. (2) That there was an unsatisfied judgment or judgments that constituted a lien upon the land, when conveyed, and upon which execution might still issue, and make it necessary to have his homestead allotted, or a mortgage reserving an undefined homestead, and' constituting a lien on the land that could not be foreclosed without allotting a homestead to the mortgagor in the land. (3) That the mortgage deed was void, because executed with intent to defraud the defendant’s creditors, and that the mortgagor did not have a homestead allotted already in other lands. In order to rebut the presumption of validity by bringing the deed under the prohibition contained in section 8, Article X of the Constitution, one of these grounds of objec*357tion mentioned must be made to appear by any person wbo would raise a question as to the effect of the conveyance.”

It is this construction of the Constitution upon which the defendant relies to invalidate the contract of sale or option. Justice Merrimon dissented from the judgment and opinion of the Court, and held the view that the homestead right, and the protection guaranteed by the Constitution against a transfer thereof without the assent and privy examination of the wife does not depend upon any state of indebtedness, nor is it required that the homestead should have been actually allotted, or that a judgment lien or other conditions indicated in the opinion of the Court should exist before the provision of Article X, section 8, of the Constitution, which forbids a conveyance of the homestead without such assent and privy examination, would become operative. He also thought that the opinion of the Court in Hughes v. Hodges was in conflict with prior decisions of this Court in Jenkins v. Bobbitt, 77 N. C., 385; Lambert v. Kinnery, 74 N. C., 348; Beavan v. Speed, ibid., 544, and Adrian v. Shaw, 82 N. C., 474, which he contended had settled the law to be that, without regard to any indebtedness of the husband, the homestead could not be conveyed without the assent and privy examination of the wife, but that the husband’s deed was effectual to pass title to the land subject to the homestead. In Hughes v. Hodges the mortgage was executed 8 January, 1876, when defendant’s first wife, who did not join in the deed, was living. She died in 1881, and he was again married in 1882. There was no reservation of the homestead in the mortgage, and no judgment docketed against the mortgagor, nor was there any question of fraud involved. The suit was to foreclose the mortgage. The court below held that the land should be sold subject to the homestead, or only the “reversionary interest,” as it was termed inaptly, but perhaps for the sake of convenient description, in the absence of a better word. This Court, in an opinion by Justice Avery (with a dissenting opinion by Justice Merrimon, as already'stated), reversed that decision and held that the deed passed the entire interest in the land to the mortgagee, encumbered only by the *358dower right of the first Mrs. Hodges, which expired at her death, and ordered a sale to be made accordingly.

In Joyner v. Sugg, 132 N. C., 580, it appeared that there was no judgment, or other debt than those secured by the deed of trust, and no question of fraud, but the homestead right of Blaney Joyner was reserved in the deed. We held that J. A. E. Joyner, who bought at the sale under the deed of trust, acquired a good title in the land, subject to the homestead right of Blaney Joyner, as that was expressly retained in the deed, and that, as he had died, and the exemption right had ceased, a full and unencumbered title passed to her. It was further said, in arguendo, that the right to the homestead always exists and is guaranteed by the Constitution, but the homestead itself cannot come into existence until it has been “selected by the owner” of the land and actually allotted, and thereby identified, as decided in Mayho v. Cotten, 69 N. C., 293; Hager v. Nixon, ibid., 108, and as strongly intimated in Hughes v. Hodges, supra; but this expression, of course, must be viewed with due reference to the facts then under consideration, there being no judgment or other debt, no fraud and no prior conveyance in which the homestead right had been reserved. In such a case the homestead could only be allotted upon application of the party entitled thereto. What is said in that case, therefore, is not at all in conflict with the decision in Hughes v. Hodges, supra. It was approved by this Court recently, in Davenport v. Fleming, 154 N. C., 291, in which we held (in a concise and clear-cut opinion by Justice Holce) that the constitutional provision against conveying the homestead without the joinder or assent of the wife evidenced as therein presented, applied only and exclusively to the “homestead right,” and, quoting from Joyner v. Sugg, it was further said: “A deed in trust by the husband, in which the wife does not join, reserving the homestead of the grantor therein, conveys the entire land contained in the deed of trust, subject only to the determinable exemption in $1,000 thereof from the payment of the debts of the grantor during his life,” to which the learned justice added: “That case throughout is an apt authority in support of the present ruling.”

*359We have thus reviewed two of tbe recent cases upon tbis subject, not for tbe purpose of testing tbe relative strength or value-of tbe different and, in some respects, apparently conflicting views to be found in some of tbe decisions upon tbe subject, but ratber for tbe purpose of clearly defining tbe proposition upon wbicb Mr. Spence relied, in bis able argument before us, to sustain tbe demurrer. He urged that tbe allegations of tbe complaint, witb tbe finding of tbe judge as to tbe date of tbe judgment and tbe admission as to tbe marriage of tbe plaintiff at tbe time of tbe contract, showed that sufficient facts existed to invalidate the contract, under tbe decision in Hughes v. Hodges, supra, and Fleming v. Graham, 110 N. C., 374. But tbe weakness of tbis position appears when we consider that tbe office of a demurrer is to point out defects in tbe pleading, which is tbe object of attack, and it must stand or fall by tbe facts therein alleged, and extraneous matters cannot be called in aid to supply deficiencies, wbicb is necessary to be done in order to show that tbe cause of action is bad. Tbe doctrine of aider does not apply to such a case. “It is a fundamental rale of pleading that a demurrer will only lie for defects wbicb appear upon tbe face of tbe pleading to wbicb it is opposed, and must be decided without evidence aliunde, unless by consent of tbe parties. A speaking demurrer, that is, a demurrer wbicb is founded on mbtter collateral to tbe pleading against wbicb it is directed, is bad, and as such will be overruled. It is also a well-settled principle that, when a pleading is demurred to, resort cannot be bad to other pleadings for tbe purpose of supporting or resisting tbe demurrer, but tbe demurrer must prevail or fall by tbe force of tbe pleading to wbicb it is directed.” 6 Enc. of PL and Pr., 297, 298. If tbe new or additional facts which are required to point tbe objection are contained in tbe demurrer, it is called a “speaking demurrer,” and is not good pleading. Nor can tbe judge find facts to aid tbe defective pleading. It must be considered by. itself and upon its own merits. Tbe recent cases of Miller v. R. R., 154 N. C., 441, and Brewer v. Wynne, ibid., 467, furnish illustrations of tbe rule. There was no consent given by tbe plaintiff to tbe finding as to tbe date of tbe judgment, but be dis*360tinctly excepted to the judge’s ruling, which is sufficient to include the said finding of fact. It does not appear, therefore, by the complaint, whether there was a judgment which was a lien upon the property at the date of the contract, nor that there was a prior mortgage or deed of trust reserving the homestead, nor that the contract was void as to creditors, and no homestead had been allotted in other land, so as to bring the case within oue of the categories stated in Hughes v. Hodges, the presumption being-in favor of the validity of the contract, and the burden being upon the defendant to show the contrary. It may also be remarked that the complaint does not allege that a homestead had not already been allotted to the defendant, nor is the value of the land stated. These allegations, which are omitted, may become material in certain phases of the question.

We must not be understood as passing upon the soundness of the objection to the complaint, even if any one or all of said facts had been alleged therein. We merely decide that, in the present state of the pleadings, the demurrer should have been overruled and the defendant allowed to answer. The facts may then be fully disclosed, no injustice will be done the plaintiff by assuming the existence of facts which do not clearly appear, and we may the better and the more safely consider and solve the interesting questions, as to the homestead right, which were argued before us. There was error in the respect indicated.

Error.