MAYHO and PARKER v. COTTON.

out $1,000 as homestead, and enough is still left to pay plaintiff his bid, $2,000, and interest.

7. Wife should be a party to any proceeding to eject her from homestead, especially since she cannot now claim dower. Bunting v. Foy, 66 N. C. Rep. 193.

Coningland, and Batchelor, Edwards & Batchelor, contra.

RODMAN, J. The defendant, Cotton, owned two pieces of land four miles apart, the one called the Mansion, on which he resided, and which is claimed in this action, and the other called the Swamp Place. Both were sold under execution on 6th March, 1869. The plaintiffs purchased the Mansion. The defendant claims a homestead in it.

On the 2d March, 1869, defendant proceeding under the Act of 22d August, 1868, then in force, (Acts 1868, ch. 43,) applied to a Justice to have his homestead laid off in the Swamp Place, which was done, the return of the freeholders being dated 4th March. It does not appear when the return was registered.

The grounds on which the defendant now claims a homestead in the Mansion, as we understand them, are:

1. That as the law then stood under the Constitution and Act of 1868, he was obliged to take his homestead in the land on which he resided, and any proceeding to have it laid off elsewhere was void, at least unless his wife joined in the application.

2. That as the sheriff conveyed by his deed to the purchaser of the Swamp Place the whole estate of the defendant without an express exception of the homestead, the defendant was not allowed a homestead in that place.

It may be inferred from the language of the Constitution that its framers supposed that the debtor would take his homestead in the dwelling which he inhabited and the surrounding lands. But his choice is not positively restricted

MAYHO and PARKER v. COTTON.

to that, nor to contiguous lands. It might frequently happen that if so restricted, a debtor might not be able to get a homestead of the permitted value, when by taking lands not contiguous to his dwelling he could do so. Was a debtor to be restrained and maimed in his homestead, and the intention of the Constitution defeated by an accident of that sort? The lands although not contiguous might be very near, and the clear intention of the Constitution was to exempt a certain value. What difference could it make to a creditor whether the assignment were in one place or another, so that the value of the exemption was not increased? The Legislature following out the Constitutional intent, and regarding the value of the exemption as the only thing material, soon removed all doubt by enacting that a homestead might be assigned in tracts not contiguous. As soon as it was established that a man owning a dwelling worth $500 could take take that, and also land elsewhere worth $500 for his homestead, it became evident that no reason of justice or convenience prohibited him from taking his homestead to its full value in the latter place and giving

up the former to his creditors if he so selected. It is true the homestead in this case was assigned before this power was expressly established by legislation; but it existed under the Constitution and the Act of 1868, at least to the effect that the assignment of a homestead in a place other than the residence, at the request of the debtor was not void as to him. In this case the defendant received his homestead in the Swamp Place; that the sheriff did not refer to it and exclude it from his deed, was not material. A sheriff's deed passes only what he may lawfully sell. If, upon the compromise with the purchaser afterwards, the defendant did not obtain the full value of his homestead right it was his own folly. It is to be presumed that he did. By so receiving it and by his representations to the plaintiff when he purchased the land now sued for, the de

GREEN v. GREEN.

fendant is estopped from claiming a homestead in this land. If taking a homestead in the Swamp Place was illegal in the sense of being unauthorized, the defendant cannot avail himself of his own illegal act to obtain two homesteads, as in effect he would if he could defeat the plaintiff's action. Neither is it material that the wife of defendant did not by deed assent to his receiving a homestead in the Swamp Place. Sec. 8, art. 10 of Constitution applies only to a conveyance of the homestead after it has been laid off.

PER CURIAM.

Judgment affirmed.

BEADY A. GREEN and J. B. GREEN v. GEORGE J. GREEN.

The misjoinder of unnecessary parties, either as plaintiffs or defendants, is mere surplusage, and under the liberal system of pleading introduced by our Code of Civil Procedure, is not a fatal objection.

A reference made by the Court to take an account to be used in an action pending before it, is not such a reference as can be ended at the election of either party, upon the notice prescribed in the Code of Civil Procedure, sec. 247. (Maxwell v. Maxwell, 67 N. C. Rep. 383, cited and approved.)

CIVIL ACTION for the recovery of real property, tried before Buxton, J., at Spring Term, 1873, of UNION Superior Court.

The action was originally brought by one Tilmon Green, to Fall Term, 1869. He having died, the present plaintiffs, B. A. and J. B. Green, devisees under his will, come into Court, and make themselves parties plaintiff.

One of the defenses set up in the answer being of an equitable character, in order to ascertain the amount for which the land was bound, at Fall Term, 1870, a reference was ordered by the Court to the Clerk and S. H. Walkup, Esq., to take an account in the cause. This was done and a report made, which at Spring Term, 1871, was re-referred

GREEN v. GREEN.

The parties were notified to attend on the 13th of August, 1872, before the referees for the purpose of taking the account, but the defendant not appearing, (having been notified by the wrong name) a postponement was had until the 10th of September, 1872, and the parties were again notified. On the 2nd of September, the following written notice was served by the defendant on the plaintiffs. After stating the case, "the referees, S. H. Walkup and G. W. Flow, heretofore appointed in said action, having failed to make their report within the time prescribed by law, you are hereby notified, that I, elect to end said reference, and desire to proceed as though no reference had been ordered. August 31st, 1872. G. J. GREEN." The parties being present before the referees on the 10th of September, 1872, the counsel for the defendant produced before the referees the foregoing notice duly served upon the plaintiffs, and objected to any further proceeding under the reference, on the ground that the reference was terminated by service of the notice in accordance with C. C. P., sec. 247, chap. 5, title 10, the referees having failed to make their report within sixty days.

(Signed)

The objection was overruled, and the referees proceed to take the account. Defendants excepted, and entered their protest in the proceedings.

The referees reported to Fall Term, 1872, at which term the defendants was allowed until the 1st of Febuary, 1873, to file exceptions. At Spring Term, 1873, no exceptions being filed, and the Court refusing to grant further time for that purpose, the plaintiffs moved for a confirmation of the report; whereupon, the defendant renewed the motion made before the referees to set aside the report for the reason apparent on its face, to-wit: the reference had ended upon the receipt of the notice alluded to. His Honor being of opinion, that the provision of sec. 247, C. C. P., were not applicable to a reference to state an account, declined to set

GREEN v. GREEN.

aside the report, but allowed the motion of the plaintiffs to confirm the same. From which judgment the defendant appealed.

Upon the argument, a misjoinder of parties plaintiff was relied to defeat the action. His Honor below was against the defendant on this point.

Bailey, for appellant, submitted:

When the case was first constituted in Court, Tilmon Green being plaintiff, the defendant's answer and the reply raised an issue on the defendant's title; but when Tilmon Greene died and the present plaintiffs came into Court as such, the defendant filed a supplemental answer denying their title. This, I submit, had the effect to shift the issue from the defendant's title to that of the present plaintiffs.

This being so, a reference was erroneous, and the transcript shows a re-reference after the present plaintiffs became such of record.

This was not a reference by consent, such a reference must be only upon the written consent of the parties; nor is the present issue made by the substituted supplemental answer the subject of reference under the Code, sec. 245. The defendant's notice to elect to end the reference was brought to the attention of the Court, but while that may not have been the proper remedy, and it is not insisted that it was, it appears from the case that the defendant moved to set aside the report-such is the motion, and if a proper one should be allowed, though based on a wrong reason.

If the Court had no power, as it is submitted it had not to refer the case after B. A. and J. B. Green became plaintiffs, then it ought at the earliest moment to have arrested its steps and granted the motion to set aside the report. For though, coram non, yet it is error to confuse a litigation in this way, according to the reasoning deducible from Dulin