The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-07-10


accordingly decreed for sale of the prop
erty, or so much as may be necessary to
pay the claim, etc. The case was heard
upon the facts stated in the complaint
and answer, which, with the exhibit, the
decree and the report of his honor, ana
the exceptions, will be found in the re-
port of this case. The exceptions raise
practically the one question stated at the
beginning of this opinion.
We hold with the Circuit Court on TINS
question. The plaintiff is a mutual IN
surance association, chartered by the leg
islature of this State, December Is, 1874,
with power to mutually insure the re-
spective dwelling houses, barns and other
buildings of it's members of Florence
county against loss by fire, wind or llght-
ming. upon such terms and under sucn
conditions as may be fixed by the by
laws Of said corporation" Section OF
the act of incorporation incorrectly set
ont in the complaint, is as follows: That
every member of said corporation shall
be, and is hereby, bound to pay his, her
or their portion of all losses and expenses
accruing to said corporation; and all
buildings and other property insured by
and with this corporation, together with
the right, title and interest of the assured
of the lands on which such buildings or
other property may stand, shall be
pledged to the said corporation; and the
said corporation shall have a lien thereon
against the insured, his or her heirs, rep
resentives and assigns, during the con-
tinuance of their insurance, as to all
debts and liabilities contracted or in
Cured by said corporation subsequent to
the passage Of this act" When, there
fore, a person becomes a member OF this
association, and enters into the contract
of insurance, he voluntarily gives to the
corporation the lien upon the dwelling
houses, barns and outbuildings insured,
together with the right, title and interest
of the insured to the lands on which such
buildings stand. We are not to be under
stood as ruling that this association has
power to insure, and, by its charter, ac-
quire therefor lien upon personal prop
erty. This question is not before us. In
deed, in the third exception of appellant
it is claimed that the charter and con-
tract create a lien, if any, on the personal
property only. While the first exception
might be strained to cover this question,
the question was not made before the
Circuit Court, nor argued in this court;
hence we assume it is not intended to be
made.
The question is to be determined by the
constitution of 1868, in force when the
contract jim question was made. Under
that constitution, it has been often adj
Judged that the homestead is not an es-
tate, but a mere exemption from attach
ment and sale under any mesne or final
process issued from any court. The title
and dominion over the property remain
ing with the owner, he could ALLEVIATE or
incumber it as he saw fit, consistently
with the constitutional or statutory en-
actment creating the homestead. The
constitution of 1868 placed no limitation
on this power But it is provided in Sec
ton 213O, Rev. ST., that " no waiver Of
the right Of homestead, however, solemn,
made by the head Of a family at any time
prior to the assignment of the homestead,
shall defeat the homestead provided for
in this chapter; provided, however, that
no right Of homestead shall exist or be
allowed in any property real or personal,
aliened or mortgaged, either before or at
ter assignment, by any person whatso-
ever, as against the title or claim of the
alenee or mortga gee, or his, her or their
heirs or assigns" 1t has been held that
this act limits the modes of defeating a
homestead to those pamed therein-alie-
nation or mortgage of the property. Den
dirk VS.. Seaborn, % s. c., 4S5. The mort
gage, however, need not be in form le-
gal mortgage; an equitable mortgage may
defeat the homestead allowed by the con-
4.l.. ,o% dor. q
sides the pledge" Of the property insured
the "lien" thereon, which is "a tie that
binds property to debt or claim for its
satisfaction''-is, in this case given by
the statute, upon the assent of the owner
by his becoming member Of the assocla-
ton, and entering into the contract of in
surance, designating the property in
sured and subject to the lien. The express
purpose of the act of incorporation was
to give lien ON the very property usual
lily included and claimed under homestead
exemption-''the dwelling house, etc.
The lien created by the statute and con-
tract pursuant thereto is mortgage in
the sense OF Section 2130, quoted above.
1t is a voluntary pledge or dedication
of specific property as a security for the
satisfaction of an obligation.
We reach this result with all the more
satisfaction because the legislation and
contract in question are not hostile to the
preservation Of homesteads, but, on the
contrary, are directly designed to afford
owners of homesteads at small expense
mutual protection against the destruction
of their homes. The judgment of the Cir
cult Court is confirmed.
pTINKT ENpC ApNTNA SATuE