(concurring). If any question is well settled in this State, it is, that all of the lands of a debtor, the homestead inclusive, are subject to the lien of a docketed judgment. Ch. 358, Acts 1885; Rankin v. Shaw, 94 N. C., 405. It is unnecessary that there should be a levy. Miller v. Miller, 89 N. C. 402; Mebane v. Layton, ibid., 396.
Whatever may be said as to the effect of the general lien of a docketed judgment in other States, our decisions place it on the same footing, so far as its binding effect upon the *178land is concerned, as if a levy had been actually made. Sawyers v. Sawyers, 93 N. C., 321; Lytle v. Lytle, 94 N. C., 683; Lee v. Eure, 93 N. C., 5; Miller v. Miller, supra. Such a lien is, therefore, a “ charge ” upon the lands of the debtor, and “ in the same way as if he had charged them in writing under his hand.” Rapalje and Lawrence’s Law Diet. Its holder is recognized in a court of equity as a proper and necessary party, with a mortgagee and other incumbrancers in the adjustment of priorities, and the administration of other equities between ¡persons interested in the property. Adams’ Eq., 145; Hinton v. Adrian, 86 N. C., 61; Wilson v. Patton, 87 N. C., 318; Lockhart v. Bell, 90 N. C., 499. It is a rested right. If, then, the judgment creditor has a charge upon the land, why should he not be entitled, as are others having charges, to the aid of the Court, in preventing the impairment of his security by the arbitrary acts of the judgment debtor. But it is said that the extension of such relief to a judgment creditor will be a fruitful source of litigation. This should be addressed to the General Assembly, which has seen fit to restore the lien of a docketed judgment. Cb. 359, Acts 1885. Again, it is said, that the act restoring this lien may be unconstitutional. I search in vain to find any authority for such a proposition The Constitution simply says that the homestead shall “be exempt from sale under execution, or other final process.” Art. 10, § 2, It does not say that it shall be exempt from a lien. The validity of such a lien is recognized in Wilson.v. Patton, and Hinson v. Adrian, supra, and it is not an open question in this State. It is also asked, how can the debtor derive any benefit from land onty valuable for timber? This forcible suggestion loses its power when applied to a case like this, “ where a good portion of the land is cleared and in a state of cultivation.” It is also urged, that in Markham v. Hicks, 90 N. C., 204, it is said that “it is this estate in its'entirety” which the creditor is not allowed to sell. A very cursory *179examination of that case will show that it refers not to the manner of using the exempted land, but simply to the sale of what is called the “ reversionary interest.”
Again, it is argued that a judgment creditor can not bring an action of waste. No one pretends that he can, as he is neither a reversioner nor a remainderman, but having a charge upon the land, he has a right to invoke the aid of a court of equity in certain cases to prevent the impairment of his security. This is so well settled as to charges generally that it is unnecessary to cite in support of it the various works on equity jurisprudence. That equity has interfered to protect the lien of a judgment creditor will be seen by reference to Webb v. Boyle, 68 N. C., 271 ; High on Injunctions, § 252, and^he case from Connecticut cited in the opinion of the Court by Justice MerkiMON. But it is said that Thompson, in his work on Homesteads, remarks (§ 165) that “ these questions have all, under various phases, addressed themselves to the courts. It would seem, upon principle, that they are questions with which the creditor can have nothing to do.” What questions ? A glance at the chapter (which is entitled “Of the estate or interest in lands and goods necessary to support an exemption ”) will show that the questions are, whether a debtor can have his homestead assigned in equitable estates for years, in remainder, etc.; and yet this is cited as authority as to the manner in which the homestead shall be used when assigned. Equally inapplicable to the question before us is § 635 of the same work, which relates to the sale of the “ reversion ” only. It is confidently asserted, however, that a homestead is “ a-determinable fee,” and that the homesteader is not impeachable for waste, and, therefore, cannot be enjoined in a case like this.
Even if the homestead were a “ determinable fee,” if it had a charge upon it, it would be as much subject to the supervision of a court of equity as if the charge were upon *180other estates, whether for years, for life, or in fee. So the question as to whether the homestead is a determinable fee has nothing whatever to do with the decision of this case. But the definition affords a striking illustration of the almost bewildering confusion of terms, which has grown out of the word “ homestead.”
Another illustration is presented by the use of the words “ reversionary estate,” when there can technically be no “ reversion ” in the case of a homestead, for the estate has never been changed. It is hard to understand how the words in the Constitution, to the effect that a certain parcel of land shall not be sold upon final process for a limited period, can be made the basis upon which to erect estates and create reversions. These words in the Constitution amount to nothing more or less than a stay of execution for the period mentioned, and the “ inadvertent ” assumption, that a new estate is conferred upon the judgment debtor, is swept away by the convincing logic of Bynum, J., in Bank v. Green, 78 N. C., 247, approved by our present Chief Justice in delivering the opinion in Markham v. Hicks, 90 N. C., 204, and Rankin v. Shaw, 94 N. C., 405. Judge Bynum says that “the homestead has been called a determinable fee, but as we have seen that no new estate has been conferred upon the owner and no limitation upon his old estate imposed, it is obvious that it would be more correct to say that there is conferred upon him a determinable exemption from the payment of his debts, in respect to that particular property allotted to him.” Now, if the homestead provision confers no new estate upon the judgment debtor, but simply exempts it, not from a lien, but from sale upon final process for a limited period, why, I ask again, should the lien — the charge conferred by a docketed judgment — be alone exempted from the protective power of a court of equity ? I am clearly of the opinion that there is nothing in the Constitution or the laws which warrants such an exception.
*181But, while I think that a judgment creditor, in a proper case, is entitled to this protection, I would, by no means, be understood as assenting to any inference, which may be improperly made, that the judgment debtor is to be assimilated, in respect to the use of the property, to tenants for life. In my opinion, he has a right to commit the most injurious acts of waste, and lie is not to be molested so long as he leaves enough (though it be but the bare land) to satisfy the lien. Nay, he may even impair the security, if he does it in a prudent use of the property, for the purposes of which, it is alone susceptible of being used, such as the use of mining lands, shingle swamps, and even land valuable only for timber. I think the principles we have laid down are applicable to the present case. Here, it is admitted that the security will be impaired, that the land is not alone valuable for timber, but that a good portion of it is cleared and in a state of cultivation, and that the defendant has sold the timber trees, and is about to remove them. Ordinarily, it is necessary that the facts should be set out, in order that the Court may see whether irreparable injury will be done. This, I conceive, is wholly unnecessary, where the allegation of irreparable injury is, as in this case, admitted. . In the administration of this preventive remedy by the Court, each case must be governed, of course, by its peculiar circumstances, and it is, therefore, difficult to lay down any general rule of application. I think the facts in this case entitle the plaintiff to the injunction, as prayed for.