We suppose the ruling was made on the ground that the right to a homestead therein, it being conceded that the premises were not worth more than one thousand dollar’s, was not divested by the deeds executed by the defendant alone. In this we think there is error, and the ruling is in conflict Avith the adjudications heretofore made in this court.

In Sutton v. Askew, 66 N. C., 172, it is decided that the act of the general assembly restoring to the avMoav the common law right of doAver in all estates of inheritance whereof the husband was seized at any time during the coverture, Avas inoperative as affecting lands acquired by him, and Avhen the marriage also occurred, before the change in the pre-existing law. It is declared that the husband could alienate and pass the title to such lands AAuthout the consent of his Avife.

FolloAving the principle thus announced, ve held in Bruce v. Strickland, 81 N. C., 267, that lands oAvned by the husband previous to the adoption of the constitution, and Avhere the marriage was also prior to that date, could be conveyed by his deed free alike from the claim of dower and homestead; and when he had exercised the right of disposition retained by him, notwithstanding the provision, in unabridged force, it was beyond his recall. This case has been referred to and approAmd in Jenkins v. Jenkins, 82 N. C., 208; O’Kelly v. Williams, 84 N. C., 281, and Williams v. Teachey, 85 N. C., 402.

The homestead being out of the way, and the legal title vesting in the plaintiff under the deed from the mortgagee, Brown, AAe can perceive no obstruction to his recovery of the possession of the land. Wittkowski v. Watkins, 84 N. C., 456; Isler v. Koonce, 81 N. C., 378. Indeed, as betAveen the mortgagor and mortgagee of an equity of redemption, the legal title being in a former mortgagee or trustee, the latter has a right to recover possession from the former. Davis v. Evans, 5 Ired., 525.

*312 There is error, and the nonsuit must be set aside and a venire de novo awarded, and it is so adjudged.

This will be certified for further proceedings in the court below.

Error. Venire de novo.