¶1 The defendant purchased the land described in the complaint in September, 1871, and in October, 1874, mortgaged the same to the plaintiff to secure a debt of eighty-five dollars with interest from April, 1873, on whichthe sum of twenty-five dollars has been paid. The defendant was married in the year 1852, and his wife, who is still living, did not unite with her husband in executing the deed. The relief demanded in the action is a surrender of possession a reference to ascertain what is due the plaintiff, and a decree of foreclosure and sale. The only defences set up in the answer are: first, that the land being the only real estate owned by the defendant and of the value of one hundred and fifty dollars only, he is entitled to a homestead therein notwithstanding the conveyance; and secondly, that the subject matter of the suit is cognizable before a justice of the peace and the superior court has no jurisdiction.
¶2 1. The land having been acquired since the adoption of the constitution, (1868) and the enactment of the law to carry into effect its provisions for a limited exemption of the debtor’s property, is subject to the homestead, and the deed made without the wife’s assent, is inoperative to defeat th right thereto. In Jenkins v. Bobbitt, 77 N. C., 385, it is held that the husband’s deed, without the wife’s concurrence, is effectual in passing what is called his estate in reversion, or in other words, the land itself subject to the burden or in-cumbrance of the homestead, as defined in the constitution and that the title to this can only be divested in the mode *224 therein pointed out. Lambert v. Kennery, 74 N. C., 348; Beavan v. Speed, Id., 544. The right to the homestead exists by virtue of positive law, and the laying it off by metes and bounds is only necessary'in ascertaining if there be any, and the extent of the excess which may be appropriated to the demands of creditors. Lambert v. Kinnery, supra; Bank v. Green, 78 N. C., 247; Gheen v. Summey, 80 N. C., 187. It follows therefore that while the plaintiff cannot deprive the defendant of the possession of the land, he is entitled to a decree of foreclosure and sale of the land charged with the homestead incumbrance.
¶3 2. We are unable to see the force of the objection to the jurisdiction. The action is not founded on the-contract merely, but on an equity growing out of the relation of mortgagor and mortgagee to have the mortgaged premises, in case of default, sold for the satisfaction of the secured debt. It is a novel suggestion that the enforcement of such an equity falls within the jurisdiction of a justice, because the sum secured in action on the contract to pay would be cognizable before him.
¶4 The judge who tried the cause in the court below, in rendering judgment seems to have been misled by an incorrect report of the opinion in Bruce v. Strickland, 81 N. C., 267. That case simply decides that rights of property vested in the husband previous tp the homestead law could not be taken from him without his consent, and as he had an unimpaired title so his deed would convey it in the same plight.
¶5 There is error in the judgment of the superior court, and it must be reformed in accordance with this opinion ; and this will be certified to the end that further proceedings be had therein agreeably to law.
¶6 Error. Judgment modified.