This was a special proceeding before the Clerk by the administrator to sell real estate to create assets, in which the infant defendants claimed a homestead in the lands of their father. The Clerk allowed the homestead and his judgment was affirmed in the Superior Court.
The case was heard upon the following facts agreed:
"1. That the plaintiff's intestate died on or about 1 June, 1898, and that the plaintiff qualified as his administrator on 10 January, 1900.
"2. That at the time of the death of said Z. E. Goodwin he was seized in fee simple of the tract of land described in the petition in this cause and that the same is worth $800, upon which the widow is entitled to dower, and that it was all the *Page 204 (274) land the said Goodwin owned in fee simple at his death.
"3. That he left him surviving the three defendants who are under 21 years of age and also a widow, but the widow is not the mother of said children.
"4. That the said three defendants own a tract of land as tenants in common outside of any interest in said land described in the petition which they inherited from their mother, and is worth $400, said land situated in Chowan County.
"5. That the said intestate owed debts at the time of his death more than his personal property could pay.
"6. That all the defendants were properly served with summons and were properly before the Court and were represented by M. B. Culpepper, who looked after their interest. He, the said M. B. Culpepper, being duly appointed by the Court, as appears in the record.
"7. That on 25 January, 1900, plaintiff filed the petition in this cause, summons having issued on 23 January, 1900. That on 1 February, 1900, said guardian ad litem, was appointed, as appears by the record, and he was duly served.
"8. That on 14 February, 1900, said defendants filed the answer set out in the petition by their guardian ad litem, which admits the allegations of complaint and prays the petition of plaintiff be granted.
"9. That on 17 February, 1900, said cause was continued until 22 February, 1900.
"10. That on 22 February, 1900, said cause was heard with all the parties before the Court and the order of sale was made to sell the lands described in the petition in the cause and no homestead was asked or prayed for by the defendant.
"11. That no notice of appeal was given from said judgment of the Clerk on said day, nor within ten days thereafter, nor at any time.
"12. That on said 22 February, 1900, the plaintiff, in pursuance of said decree, advertised the said lands to be (275) sold, according to law, on 24 March, 1900, and nothing more was said till 21 March, 1900, when defendants filed the petition for homestead, as set out in the record, and it was then agreed the sale might be continued without prejudice to either party till the case was finally heard, as it would be expensive to procure an injunction to prevent sale.
"13. That plaintiff filed the answer to said petition for homestead on 22 March, 1900, and same was heard by the Clerk, who rendered the judgment in the record of 22 March, 1900. *Page 205
"14. That said M. B. Culpepper was not an attorney-at-law and was not represented by an attorney in filing his answer, and was not at the time informed as to legal rights of defendants.
"That said M. B. Culpepper has acted in a great number of cases in the capacity of guardian ad litem, similar to this, in which petitions were filed for sale of land for assets when there were minors. That said M. B. Culpepper is insolvent."
From a judgment for the defendants, the plaintiff appealed. The plaintiff contends that the answer of the infant defendants by their guardian ad litem was a waiver of their homestead rights, if any existed; that if the Clerk's order of sale of 22 February, 1900, was erroneous, their only remedy was by appeal; and that in any event the land inherited from their mother should be included as a part of any homestead that may be allowed them, thus pro tanto exonerating the land owned by their (276) father. We do not think that any of such contentions can be sustained.
The duty of a guardian ad litem, and in fact the object of his appointment, is to protect, the interest of his wards, and he has no power to waive any substantial right, especially when such waiver is entirely without consideration. It is true that his failure to assert their rights may in certain cases estop them from doing so, but only where such assertion would interfere with the rights of third parties subsequently acquired in good faith.
In the case before us the land has not been sold, and no rights whatever have been acquired by third parties. Therefore Dickens v. Long,109 N.C. 165, and Morrisett v. Ferebee, 120 N.C. 6, have no present application.
The law does not favor the implied waiver of homestead exemptions, especially by infant defendants. The homestead is specifically exempted by the Constitution for reasons of public policy, and even an adult is not permitted to waive his general right of homestead. Where the homestead has not been laid off, he may sell any or all of his lands and thus divest himself of all homestead right in said lands; but even this jus disponendi is controlled by Article X, section 8, of the Constitution, where the homestead has been allotted. A right, around which so many protective provisions have been placed by the organic law, can not be lightly set aside on a mere presumption of waiver. *Page 206
As to the second contention, while it would have been better for the guardian ad litem to have set up the homestead right of the infant defendants in his answer, we do not think that they have lost any right by his failure to do so. As the pleadings were constituted, there appears to have been no ground for appeal, as the allegations of the complaint are admitted to be true. The error of the guardian ad litem was not in failing to answer the complaint, but in omitting to set up an independent right of exemption existing in the infant defendants. In this (277) state of the case, we do not think that these defendants are in any worse condition than a judgment debtor; certainly not after their formal claim of exemption.
The plaintiff's third contention is directly opposed to the express letter of the Constitution, of which Article X, section 3, is as follows: "The homestead, after the death of the owner thereof, shall be exempt from the payment of any debt during the minority of his children, or any one of them." The father, whose debts the administrator is now seeking to pay, had no interest in the lands descended from the mother. Such lands were not liable for his debts, nor could they have been allotted to him as part of his homestead. The homestead exemption is a condition attaching to certain lands belonging to the debtor, which prevents their sale under execution, and after his death this exemption continues during the minority of his children, without regard to any other property they may have acquired from other sources.
If the homestead claimant were the widow, the case would be essentially different, as there is a clear distinction between the right of the children as defined in section 3 of Article X, and the right of the widow as provided in section 5 of said Article, which is as follows: "If the owner of a homestead die, leaving a widow but no children, the same shall be exempt from the debts of her husband, and the rents and profits thereof shall inure to her benefit during her widowhood, unless she be the owner ofa homestead in her own right." This provision in the latter section, which is entirely omitted in the former, emphasizes by direct implication the unconditional right of exemption given to the children by section 3.
We are of opinion that the infant defendants are entitled to the allotment of the homestead in accordance with the prayer of their petition, and the judgment of the Court below is therefore
Affirmed. *Page 207
(278)