(dissenting). I do not think that His Honor below erred in dissolving the plaintiff’s injunction, and I, therefore, do not concur in the opinion of my brethren.
The homestead law has been a fruitful source of litigation in the past, and I think a new and wide gate for additional litigation will be thrown open when it is understood that the creditor has, in any way, the right to overlook and control the extent and manner in which the debtor shall use his homestead in the support and comfort of his family. In the absence of any wanton and malicious waste and destruction of the property, I think he may make any use of it that he may deem most 'advantageous — not to the creditor' — -but to himself and family, and when so used the Court has no right to molest or interfere with him. .
*172How can he derive any benefit from land only valuable for its timber (and we know that there are many such tracts ■of land) if he is not allowed to sell a timber tree worth $1, because, forsooth, it will be worth $1 less 'to the creditor, when the homestead falls in ? Such land may be valuable, but it is of no value to him. There is hardly a prudent man to be found, who owns land valuable only or chiefly for its timber, who does not gladly avail himself of a saw-mill to realize some advantage by the sale of timber; and why should the owner of a homestead be denied that right ?
■ It will not do to say that he may use the timber himself, to the extent that it may be necessaty for building or repairing, or improving the homestead. Having nothing but the land, which is only valuable for timber, he could sell none of it to buy bread or clothing, or even to buy nails or window-glass to put in his house ; and to tell him, under such ■circumstances, that he was the owner of, or had any interest in, such land, would seem a cruel and tantalizing mockery.
I confess my inability to understand the nature of the lien of a judgment upon the homestead. It cannot be, I Rhink, a lien upon the land, or any interest in the land, during the life of the owner of the homestead, or that of his widow, or the minority of his youngest child.
In Markham v. Hicks, 90 N. C., 204, the Chief Justice says: “The estate of the debtor remains after the allotment as before, the same, whether it be in fee, for life, or for years. It is this estate in its entirety in the exempt land which the creditor is not allowed to sell under final process by the mandate of the Constitution, and to which no judgment lien now attaches, where the debt was contracted or the cause of action ■accrued since May 1, 1877. The Code, § 501, subsec 4.
“ It is to be remembered that when the Constitution was framed and adopted, no lien upon the land was created by the rendition of a judgment, and it attached only when the ■execution issued, running back to its teste for a commence*173ment, and therefore the prohibition was a full and ample protection, not only against a sale, but against any lien upon the exempt property, for there could be no lien unless the officer having the final process could sell.
“ The General Assembly, in the enactment of The Code, seems to have interpreted the Constitution as putting an interdict upon a sale of the land set apart, that is, of the debtor’s estate therein, whatever it might be, until the expiration of the period of exemption, thus rendering unnecessary the incorporation into The Code of the act of 1870. A glance at some of its sections will make this manifest.”
Without expressing any opinion upon the effect of the act of 1885, ch. 359, amending section 501, subsec. 4, of The Code, and as tó whether the Legislature can, as against a homestead debtor, give any effect to a judgment which it would not have had when the Constitution was adopted, I am able to see how a lien may relate back to the date of its teste; but I find some difficulty in understanding how the lien of a judgment may reach forward to the termination of the homestead interest, and by so doing give it a present validity and effect, to deprive the owner of the homestead of the right to do that which, but for the judgment," he might do. The judgments and liens, as to the rights of the owner of the homestead, it seems to me, can have no force as against the homestead debtor, but are perfectly dormant as to him, being deprived of all vitality by the power of the Constitution, though they may spring into life as soon as the homestead interest expires, and take effect then, in the order of priority. The judgment can give the creditor no vested right to the homestead, nor any right of any kind except in subordination to the absolute and untrammeled right of the owner of it, to use it in any way he may choose for the support and comfort of himself and family. The judgment creditor is in no sense like a remainderman or reversioner. He cannot bring “the old action of waste,” as it was at com*174mon law, nor is he embraced in any one of the classes “ for and against'whom an action of waste lies” under The Code, §§ 625, et seq.
If an action of waste would lie, I think neither the old remedy by injunction and sequestration, nor any one of the provisions given by section 338 of The Code, can be invoked.
If it can be said that the cutting and selling the timber by the owner of the homestead, though conducive and perhaps necessary to the support and comfort of himself and family, impairs, pro tanto, the security of the creditor, so would the continuous and excessive cultivation of a fertile field or lot exhaust it and render it barren, but it will hardly be insisted that this is a matter with which the creditor could interpose It would be damnum absque injuria. The rights of the debtor are fixed by the Constitution, and are absolute, and cannot be limited by legislation, nor can the homestead, in my opinion, be taken in custodia legis, or its use for the support and comfort of the debtor be in any way disturbed by legal process. He can in no way be considered as a mortgagor or tenant for life, any more than the creditor can be likened to a mortgagor or remainderman or rever-sioner. If he has an estate in fee, it so remains after the allotment of the homestead as before, the only difference being, that as to the homestead the creditor can acquire no rights, and as to the estate after the termination of the homestead the debtor can make no disposition as against the judgment creditor.
If the creditor has the right to enjoin the debtor from cutting down and selling timber, why may he not have a receiver appointed to take and invest the proceeds — first, for the use of the debtor during the continuance of the homestead, and then to be paid to the creditor? No one would entertain such a proposition for a moment, and yet it gives the debtor some benefit, and would be far’ more just and equitable than to compel him to abstain from reaping any advantage from- his *175forest laud, because it may blight the expectations of the creditor, looking forward to the time when the timber shall-become valuable to him.
In Poe v. Hardie, 65 N. C., 447, it is said “the estate in the homestead as created by the Constitution is a determinable fee, and the tenant was not ‘impeachable for waste,’ even before the act of 1870. That act was intended to protect the owner of a homestead against any vexatious litigation which might be instituted by the purchaser of a rever-sionary interest.”
Thompson on Homestead and Exemptions, referring to the various questions that have been presented in regard to the nature of “the estate of homestead,” says:
“ These questions have all. under the various phases, addressed themselves to the courts. It would sec-in, upon principle, that they are questions with which the creditor can have nothing to do.” Section 165.
Again, it is said, § 635: “Although some courts treat the homestead as an intermediate estate in the land, the creditor cannot seize and se 1 the reversion. If it were otherwise, (quoting the authority of ‘ a learned Court ’) * * * by depriving the debtor of all use of the homestead except the mere occupation of it, a creditor might contribute largely to such a state of things that would drive him from the homestead to the poor-house.”
In Markham v. Hicks, 90 N. C , 204, I can find nothing in conflict with what was said in Poe v. Hardie, so far as it relates to the question before us. The Chief Justice said: “ The correct view of the Constitution and the subsidiary statutes is taken and expressed by Bynum, J., in Bank v. Green, 78 N. C., 247 : ‘ Their legal effect is simply to protect the occupant in the enjoyment of the land set apart as a homestead, unmolested by creditors.’”
If the law will not allow the reversion' to be sold, because, as declared by this Court, its purpose is that the owner of *176the homestead shall not be harassed or vexed by a purchaser who will become a reversioner, ought the Court to allow that purpose to be defeated by permitting him to be harassed and vexed by one, or it may be a dozen, judgment creditors ? Ought the Court to allow a judgment creditor to do just what it was intended there should be no purchaser to do ? Can it invest a creditor with a power denied to a purchaser ?
But even conceding that, in a proper case, the plaintiff would be entitled to the extraordinary relief asked, I do not think that the allegations of the complaint are sufficient to-entitle him to it.
It is true, that the complaint, alleges that the plaintiff has a docketed judgment of $50.30, with interest from January, 1887, and $1.65 costs, against the defendant Britton, and that there exists prior liens “ amounting to several hundred dollarsthat the land contains 200 acres, “ not worth to exceed $1,000;” that “ a good portion of said land is cleared and in a state of cultivation, while the other portion is valuable chiefly and principally for its timber trees;” that the-defendant Britton has sold the timber trees to the defendant Pittman, who is cutting and removing them, which, if allowed, “will greatly reduce and impair the plaintiff's security for said judgment debt, and inflict upon plaintiff irreparable damage.” The amount of liens on the land is left indefinite, and it does not appear that the timber, if sold, will not leave the land amply sufficient to pay the debts, or that-defendant Pittman is insolvent. It does not allege that the value of the land, for its ordinary use, will be impaired, or that all, or how much of the timber, is being cut and sold, or that a sufficiency will not be left for building, repairs, &c. — that is, for house-bote, plow-bote, fire-bote, hedge-bote, &e.
Facts should be stated from which the Court can see, if true, that the damage is irreparable, and I think this has not been done.
*177Counsel for the plaintiff refers to chapter 401, Acts of 1885, which enacts: “ That in an application to enjoin a trespass on land, it shall not be necessary to allege the insolvency of the defendant, when the trespass complained of is continuous in its nature, or is the cutting or destruction of timber trees.”
Are the defendants such trespassers “on land” as the statute coniemplates ? There is no allegation that they are trespassers on land at all.
I know of no precedent in this State, or elsewhere, where the constitutional provision is like ours, for such an interference with the right of the owner of a homestead to use it as he may think most conducive to the comfort and support of himself and family, and Ido not concur in making one.
In the earlier days of the homestead law in this State, it seems to me that the judicial pendulum lost iis equilibrium, and, swayed by a benevolent sentiment prompted by the impoverished condition of the State, it was greatly on the side of the homestead debtor. Having a Constitution which guarantees the unmolested right to a homestead, where its owner is denied the right to use it in any way that may best contribute to his support and comfort without being molested, harassed and vexed by creditors in regard to the manner in which he shall use it, it seems to me that the pendulum is swinging in the other direction.