(dissenting). I regret that, after patient consideration of the argument, and investigation of every phase of the subject, I feel constrained to dissent. My conclusions are embodied in two propositions, each of which I shall discuss as briefly as the importance of the questions involved will permit:
*1821. If the homestead is to be treated as an estate, with all of the incident, rights and liabilities on the part of the owner that the law attaches to other analogous estates, the owner is not impeachable for waste, and if a Court can enjoin him from injury to the land at all, it can interfere only when the waste is wanton, malicious or extravagant, and not simply because, in the enjoyment of the profits, he may be doing permanent injury to the land, and thereby lessening the security of the judgment creditor.
The homestead right was engrafted on our system of laws in North Carolina to meet a distressing emergency. Our people were overwhelmed with debt, incurred before their slaves were emancipated, and their stocks had become worthless. The liability remained when their property was destroyed. The unconstitutional stay laws, and the attempt to make the homestead provision retroactive, sufficiently evince the fact that the law-makers were exponents of a popular sentiment, which demanded a temporary suspension of sales, and a present and future provision of a home, whose boundary line those armed with execution or other process for the collection or even security of debts could never cross. Where the meaning of the framers of our Constitution of 1868 may be left in doubt, by reason of any ambiguity of the terms in which it is expressed, we are at liberty to consider the circumstances that surrounded them in interpreting its provisions.
This principle of construction will apply with equal force, however we may settle the vexed question, whether the homestead is to be considered as an estate, or only a personal right of exemption, .attaching to the land first, when the creditor is armed with authority to subject it to sale. Upon this point opinions of this Court, delivered at different times, are, apparently, conflicting.
In Poe v. Hardie, 65 N. C., 447, the Court says: “ The estate in the homestead, as created by the Constitution, is a *183determinable fee, and the tenant was not impeachable for waste even before the passage of the act above referred to (the act of 1870, forbidding sale of the reversionary interest till the termination of the homestead right). That act was ihtended to protect the owner of a homestead from any vexatious litigation, which might be instituted by the purchaser of a reversionary interest.”
In Bank v. Green, 78 N. C., 247, it is said : “ 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 the particular property allotted to him.”
In Littlejohn v. Egerton, 77 N. C., 379, Chief Justice Peah-SON, for the Court, says : “ A condition is a quality annexed to land, whereby an estate may be defeated. A homestead is a quality annexed to land, whereby an estate is exempted from sale under execution for debt.” The laws enacted to make the provisions of the Constitution operative (Bat. Rev. ch. 55, §§ 26 and 27) designate the interest after the termination of the life estate as a reversionary interest.
In Keener v. Goodson, 89 N. C., 273, it is said that the assignment of a homestead has no other effect than to attach to his existing estate a quality of exemption from sale under execution.
After a sale of the reversion, or a conveyance by the owner, with joinder of the wife, of an allotted homestead, or the sale by a childless widow of her homestead interest allotted to her in her husband’s land, the idea that there are two existing estates in the land is not unreasonable.
Prior to the passage of the act exempting the reversionary interest from sale, there were, doubtless, many sales of the reversionary interest in the land — to take effect in enjoyment *184after the expiration of a life or lives in being (the life of the husband or the lives of husband and wife) and possibly after twenty-one years. When our law-makers called the interests that were then being sold on the first Monday of every month, at every court-house in the State, reversionary interests, they certainly adopted a term that, according to its definition, more nearly described the interest that purchasers were acquiring than any other term known to the law. “ A reversion is the remnant of an estate continuing in the grantor undisposed of, after the grant of a particular interest. It differs from a remainder. It arises by ad of law, a remainder by act of the parties.” 2 Bl. Com., 175. The act referred to proceeds upon the idea that the particular estate was dedicated to the use of the debtor and his family, under the provisions of law, while the reversionary estate or interest remained in the debtor subject to the lien of any judgment that might be docketed in the county where the land lies. This Court approves of that view of the matter in holding that it is not necessary that the wife should join the husband in a conveyance of such reversionary interest. Jenkins v. Bobbitt, 77 N. C., 385.
On the other hand, where the reversionary interest was sold before the act of 1870 was passed, an interest that had been carved out of the whole fee, and dedicated by law to the use of the family, remained unsold. It might continue during the life of a husband or the widowhood of his wife, and twenty-one years in some instances. Shall we call it a quality of exemption? When husband and wife joined, wiih privy examination of the latter, in conveying all the interests they had power to convey in the husband’s only tract of land, worth less than a thousand dollars, and subject to the lien of a judgment, Justice Ashe says for this Court (in Adrian v. Shaw, 82 N. C., 474), that their bargainee “ acquired a good and defeasible title for the life, at least, of Jackson, against the creditors of Jackson, notwithstanding he may *185•since have removed from the State.” The same case was before the Court again (84 N. C., 832), when the Court refused to overrule, and adhered thereby to the idea that the grantee of Jackson took a life estate, as that was the only point involved in either appeal. When the owner sold the life estate, as then decided, he still held, subject to the lien of docketed judgments, all of the fee simple that remained after a life estate, and an interest that was carved out of the whole estate by act of law, and kept in the grantor, though he was trying to alien the fee simple. The estate remaining in Jackson fills exactly the definition of a reversion. It did remain in him, subject to the lien, because the sale under •execution, without assignment of the homestead, was void. Lambert v. Kinney, 74 N. C., 348; Littlejohn v. Ejerton, supra; Arnold v. Estis, 92 N. C., 162.
It has been contended, not without reason, therefore, that such an interest was a determinable fee, and (for the same reason that operated in the case of tenant in tail after possibility of issue extinct) because the tenant once had an estate of inheritance. 2 Bl. Com., 124-5, § 167. If we construe the Constitution as marking out two estates as soon as the land becomes liable to sale under a lien, the “ homesteader ” is not impeachable for wraste, on the one hand, and ■on the other, the only adjudicated case, outside of our own State, cited and relied on to sustain the opinion of the Court in this case, is Camp v. Bates, 11 Conn Reports, 51, and in that opinion (on page 57) Chief Justice Williams says: “Even •a tenant in tail, without impeachment of waste, has been restrained from wanton, malicious or extravagant waste,” arid in support of that proposition, cited four Chancery cases, •decided in the English Court: Vane v. Barnard, 2 Vernon, 739; Packingham’s' Case, 3 Atkyns, 217; Strathmore v. Bowes, 2 Browm’s Ch. Reports; Chamberlayne v. Dummer, 3 Brown’s Ch., 549.
*186An examination of these authorities brings out the judicial history of the efforts to restrain tenants not impeachable, and those liable for waste, and shows how the principle stated in Camp v. Bates, and that announced by this Court in Crawley v. Timberlake, 2 Ired. Eq., 460, was established. In the English and American courts it has been held that no tenant for life, not liable for waste, could be restrained by the courts at the instance of the remainderman or rever-sioner, unless it was shown that the waste was wanton, malicious or extravagant. In England the rule was held to apply where the life tenant maliciously injured or destroyed houses or ornamental shade trees, whether transplanted or left standing for shade along avenues or parks, but it was expressly held that such tenants by virtue of their exemption from liability for waste, could cut ad libitum forest trees for timber, as will appear by reference to the cases cited supra. ■
“ A tenant for life, without impeachment for waste, may fell trees fit for the purpose of timber, though young and not such as would be felled in a .course of husband-like management of the estate (Burges v. Lamb, 16 Ves., 174-177); but he will be restrained, though having the legal right so to do, from what has been termed malicious, extravagant or wanton waste; for instance, the total destruction of a wood or coppice. So he will be restrained from cutting down trees planted or left standing for ornament, but not merely because they may be really ornamental.” Spencer’s Eq. Jur., pages 570 to 573; Williams v. Williams, 15 Ves., 427.
This rule applied to tenants for life, who held with an express grant in the deed of exemption from waste, and also to tenant in tail after possibility of issue extinct, or one who-held a determinable fee, because the two last mentioned might have had an estate of inheritance. Bisham’s Principles of Equity, § 434; Cooke v. Whaley, 1 Eq. Ab., 400; Pom. Eq. Jur., § 1348, note 3.
*187In Davis v. Gilliam, 5 Ired. Eq., 308, this Court recognized the reason of the rule also, in holding that “the husband was dispunishable for waste, because, while in possession be was tenant for life in bis own right, but. was seized with his wife in fee in her right.”
The ordinary life tenant, liable for waste, is allowed, without restraint, to clear as much of the timbered land, on his estate, for cultivation as a prudent, owner in fee simple would, and sell the timber that grew on that part. Crawley v. Timberlake, 2 Ired. Eq., 460; Davis v. Gilliam, supra.
The rule laid down in the opinion of the Court gives the defendant in this action harder measure than is meted out to an ordinary life tenant, in confining his right to cutting trees “ necessary for the reasonable use of the homestead property, for making repairs, necessary houses, fences and the like.” As has been well suggested by Justice Davis, it would be just and reasonable, now that timber trees are everywhere being converted into timber for market, and so many new industries are springing up to consume the product from the saw-mills that are being planted in almost every forest, to allow even ordinary life tenants more latitude in disposing of trees. If the owner of a homestead, however his right may be designated, is denied by the courts the privilege of cutting fifty dollars’ worth of timber from a homestead worth nine hundred dollars, even for the purpose of paying off a judgment for fifty dollars, then his condition would be better if the Court would go further, and appoint a receiver to sell the timber and apply the proceeds in discharge of liens. Such a remedy would better accord with the idea that the defendant in this case is still the owner of an estate in fee simple and liable to a charge. It is more just and reasonable that the charge should be satisfied out of the proceeds of the sale of trees than held till the expiration of the so-called exemption, and then used to buy the land and trees usque ad coslum. The law, as applied in this *188case, calls the “ homesteader ” an owner in fee entitled to the privilege of exemption, but declares his home subject to a lien — that is, a charge — and operates so as to give the holder of the lien the power to prevent his selling his pine trees suitable for timber, as any other tenant in fee would do. Truly, it would seem, that the Constitution has promised bread and the Courts have given a stone, if this new departure in the way of constitutional construction has come to remain a permanent part of our law. The opinion of the Court sometimes seems to be predicated upon the idea of dealing with life estates and remainders or reversions, and again with judgments, charges and rights. In order to meet every aspect of the argument, I have arrived at a second proposition, embodying, as I believe, the correct interpretation of Article X.
2. If the homestead be not an estate, but a mere personal right of a land-owner to hold one thousand dollars in value of land, not liable to sale under execution for debt, still the Constitution, in express terms, gives the further exclusive right of enjoying the “ rents and profits,” arising out of the homestead, to the persons entitled to it, and thereby grants exemption from impeachment for waste, which carries with it a license, not only to use the rents of the farming land, but to appropriate the products of the mines and the proceeds of the sale of forest timber trees, taken from the whole homestead, as free from restraint or interference as when the fee simple is held subject to no lien whatever.
A review of Article X of the Constitution will show the strength of this position, if we will consider all of the sections that grant and define the right together as in pari materia. Section two gives the owner of land the power to select the location of the homestead on his own land, not to exceed in value one thousand dollars, and declares it “exempt from sale under execution for debt or any other final process,” but does not in terms declare the duration of *189the exemption We are left to sections three and five for further explanation. Section three provides that “ the homestead, after the death of the owner thereof, shall be exempt from the payment of any debt during the minority of the children, or any one of them.” Here, for the first time, we find the indirect declaration that the owner is to hold the homestead till his death, and then the term of exemption is to be extended during the minority of any child. Still there is no suggestion as to the nature of the dominion, that is to be exercised over the' territory from which the Sheriff is expelled.
When we reach section five we find, first, the exemption prolonged, on certain conditions, during the widowhood of the owner’s wife, and then the definition of the extent, not only of her rights, but of those of the husband and children, in the enjoyment of the exempted land. Section five provides: “ If the owner of a homestead die, leaving a widow but no children, the same shall be exempt from the debts of the husband, and the rents and profits thereof shall inure to her benefit during her widowhood, unless she be the owner of a homestead in her own right.”
It will not be contended that the Constitution should be construed to give the widow, while she remains single, any peculiar power over the land, or exclusive privilege in the enjoyment of it, not extended to the husband or infant child.
Every rule of construction would lead us to consider these sections, as a whole, declaring first, that there shall be an exempt estate, and where and how selected, and then that it shall extend during the life of the owner, the minority of the children, and contingently during the widowhood of the wife, and lastly, how the rents and profits shall be enjoyed.' Both of these words are terms known to the law,'have a legal meaning, and it must be understood that those who *190laid the foundation of our political edifice understood their legal significance, and intended that 'they should be interpreted accordingly.
In Rapalje and Lawrence’s Law Dictionary, it is said: “In the law of real property, ‘Profit’ is used in a special sense, to denote a produce or part of the soil of land. Therefore,‘if a man, seized of lands in fee, by his deed, granteth to another the profit of those lands, to have and to hold to him and his heirs, and maketh livery, secundum formam char-tie, the whole land itself doth pass; for what is the land but the profits thereof; for thereby vesture, herbage, trees, mines and all, whatsoever parcel, of that land doth pass.’” Coke Litt., 46.
If the grant of the profits in land by the owner to another carried with it, ex vi termini, the trees on the land, why should the sovereign State, under which all the lands within its borders are holden, in conferring upon the land-owner the rights of exemption and enjoyment during such exemption in his lands, be deemed not to have used “profits ” in its apt legal sense, and to have granted for the time prescribed the unrestricted use of mines and timber trees thereon? To the same effect is Bouvier’s definition: “Under the term profits is comprehended the produce of the soil, whether it arise above or below the surface, as herbage, wood, turf, coals, minerals, stones, also fish in a pond or running water.’' The damages that were recovered in an action against a trespasser for occupation from the disseizin till the recovery, were called mesne profits, and the plaintiff in such action recovered not only a reasonable rent for agricultural products, but for timber trees cut down and new mines opened and worked. Rents would have included the damage arising out of crops raised, but a broader generic term was needed, and hence the action was called one of trespass for “mesne (or intervening) profits.” See Rapalje and Lawrence’s Law Diet., and Bouvier’s Law Diet., definition of sne profits.
*191If the sovereign State, in its organic law, has not invested every citizen who owns a homestead with the right to the untrammeled use of mines, timber, stone, and everything that might be used or consumed by an owner of a life estate in England, conveyed to him, coupled with exemption from waste, then it must be because the State has no power to grant the privilege, or because by a strained construction we distort the meaning of words that have had a known significance as far back as the time of Lord Coke. I cannot concede that this privilege of enjoying profits of every kind can be ruthlessly snatched from a grantee of a privilege, held by virtue of the fundamental law from the sovereign State, under'the specious pretext that he is lessening the security of one who extended him credit, with a knowledge of the Constitution, and as much subject to its provisions as if they had been incorporated in the note given for his debt. Moreover, it will be observed, that the personal property mentioned in the first section of Article X, is declared exempt from sale under execution or other final process, and the debtor’s right to it depends-entirely upon that declaration. Yet it is held that he has the unrestricted power to dispose of personal property assigned him, and to have other articles exempted in a re-assignment made to him, even though the judgment creditor’s security may be diminished. Durham v. Speeke, 82 N. C., 87.
This section is mentioned to show, that the construction given it by this Court is in harmony with the idea, that the purpose of the framers of the Constitution was not only to exempt the property, real and personal, assigned for the debtor’s family from seizure, levy or sale, but from interference or .control on the part of the creditor. In Bank v. Green, 78 N. C., 247, Justice ByNum, for the Court (speaking of Article X and the “subsidiary statutes”), says: “Their legal '■effect is simply to protect the occupant in the enjoyment of the land set apart as a homestead, unmolested by his creditors.”
*192Chief Justice Smith, delivering the opinion in Markham v. Hicks, 90 N. C., 204, states the rule still more forcibly: “ They (the Constitution and statutes in reference to exemption) place the property, when ascertained and set apart, outside of that which the creditor majr seize and appropriate to his judgment, as if for the time the debtor did not own it.”
But it is contended that the plain letter of.the Constitution must be disregarded, the spirit that inspired the Convention ignored, and the rights of one holdin'g this favored, family franchise from the State determined by analogy to the ruling of this Court, in a case where the debtor belonged to a class-expressly excluded from claiming a homestead in their lands.
In McKethan v. Terry, 64 N. C., 25, this Court held that where a fi.fa. was issued and levied on land in December, 1867, it was liable to sale on a ven. ex. issued on the judgment in 1869, discharged of any homestead right, because by the levy a specific lien had been acquired.
In the case of Webb v. Boyle, 63 N. C., 271, which is the sole reliance of the Court, among our own decisions, to sustain the position that the owner in fee simple of land can be restrained from cutting timber by a judgment creditor, an execution had been issued and a levy made upon the land in 1861, and again in 1867, when the creditor was prevented, by military orders and stay laws, from selling. Boyle, the debtor, therefore, had no right to a homestead in his lands. If his land had been subject to the homestead provisions of the Constitution, Justice Dick, who subsequently delivered also-the opinion of the Court in Poe v. Hardie, would have adverted to the fact that an occupant holding without impeachment for waste, was being restrained from any destruction of timber, not wanton, malicious or extravagant. Conceding the principle contended for as established by the case of Webb v. Boyle, it was applied there to land in which the owner could not claim a homestead, and it is therefore distinguishable from this case.
*193But it may be well to note the fact that, of the authorities cited in Webb v Boyle, not one relates in the remotest degree to or tends to establish the new doctrine, that a judgment creditor can in any case enjoin the debtor from committing ordinary waste, such as cutting or disposing of pine timber trees on his land. The section (455) in High on Injunctions, cited in support of the decision, is based entirely upon Webb v. Boyle — is, in effect, a quotation from it. I have shown that it is not in point, if adhered to by this Court as correct. But it is a significant fact, that so careful and discriminating a writer as Mr. Pomeroy, has, in his work on Equity Jurisprudence, neither cited Webb v. Boyle, nor noticed the extreme principle enunciated in it. In a somewhat extended examination of authorities, I have failed io find the case cited with approval by any other Court or writer, or alluded to, except in the short section of High on Injunctions, embodying a syllabus of the opinion, inserted in his work without comment, as we infer, to show the ultima thule to which a Court stretched its equitable jurisdiction at the close of a gigantic and exciting civil war, when the lines that defined the powers and duties of Courts, in the protection of private rights, were so far obscured that gross usur-pations of authority were recognized as lawful legislation, and sanctioned by the judicial departments of State governments.
It would seem, from an examination of sections 421 and 431 of High on Injunctions, that the author does not, in fact, concur in the doctrine laid down in Webb v. Boyle.
While the syllabus in Camp v. Bates is misleading, when we examine the facts we find that the Court granted an order to restrain an insolvent debtor, at the instance of a creditor who had levied an attachment on his land, upon the allegation that the defendant had committed waste “ by cutting down and carrying away the young wood and timber growing *194thereon, and that he threatens to cut down, carry away and convert to his own use, all the wood and timber and frwit trees, which would render it of little value or security to the plaintiff, and the plaintiff was apprehensive this would be done before he could obtain judgment and execution in said suit.” The learned Chief Justice rests his decision entirely upon the nature of the threatened waste, when he says : “ The possession, therefore, has always been suffered to remain unmolested so long as he contented himself with ordinary returns. This seems necessary, that the property may not be abandoned ; but it can confer no right to do such acts as are charged in this bill — acts of wanton and malicious waste.”
I-t is not contended that when the defendant made a contract, such as thousands of the citizens of the State have made within a recent period, to sell the “timber trees,” (understood everywhere to mean the trees large enough to be valuable for the purpose of sawing into lumber), that he thereby threatened a wanton or malicious destruction, like one who cuts down fruit trees. Nor can it be successfully maintained, on reason or authoi’ity, that the judgment debtor, with right of homestead in his lands, is no more protected against the interference of the judgment creditor than the mortgagor is against restraint, on complaint of the mortgagee, for diminishing his security. The mortgagor is only a tenant at will of the mortgagee as to the mortgaged land, while the mortgagee has the right to take possession if his debt is not paid, and receive the rents of the land — is really, in law, the owner of the land. The defendant in this case is the owner in fee of a tract of land worth less than one thousand dollars. The creditor has no estate or right in the land — only a lien on it as a security for his debt. The laws of North Carolina do not recognize in the judgment creditor one who has a charge on the land. Pie has no power to touch an ear of corn or a blade of grass raised thereon, and he is as much a trespasser, if he attempts to exercise own*195ership, as if lie held no claim against the debtor. By what arbitrary rule, then, can we defy the Constitution and declare the homestead right one of no higher dignity than a tenancy at will under the creditor ? The words charge upon land are used in a general sense, to mean any claim to satisfy which it is liable to be sold (see Rapalje and Lawrence’s Dictionary), and a homestead may eventually be sold to satisfy a judgment docketed in the county.
The case oi Gordon v. Lowther, 75 N. C., 193, cited in the opinion to sustain the power of the Court to grant injunction, is one in which Justice Settle, for the Court, justifies the granting of injunction against the defendant on the ground that she was “ a tenant for life with contingent remainder in fee,” &c. But it is contended that the defendant in this case must be treated as the owner in fee. If so, I maintain that the sovereign has granted him an exemption from impeachment for waste, and a consequent exemption from injunction against any but wanton, malicious or extravagant waste, as distinctly as the exemption from sale under execution for debt as to his land, and for the same period. If an estate of less dignity than a fee simple is marked out by the Constitution as the measure of the debtor’s right, when the land becomes liable to a lien, then I contend that the estate is a determinable fee, the holder of which would be exempt from impeachment for waste by the common law as well as by the express grant of the profits in the Constitution, and, according to all the authorities in England and America, would not be subject to restraint by a court of chancery, except for wanton, malicious or extravagant waste.
Broswell v. Morehead, Bus. Eq., 26, is the only remaining authority relied on to establish the plaintiff’s right to extraordinary relief.
The principle decided there was, that one holding a contingent estate by executory devise in slaves was entitled to an order restraining the guardian of an infant, whose right *196to the absolute property in said slaves would accrue on the contingency that she should attain the age of twenty-one, from removing the slaves from the State till the infant should arrive at said age. I cannot see, therefore, how the right of the plaintiff to the injunction is sustained by that authority. I am not disposed to doubt that a docketed judgment creates a lien upon the land of the debtor in the county where it is entered, though the statute does not purport to convert that lien into a charge, but merely defines the rights of the creditor as to priority.
In McKethan v. Terry, supra, the Court declared that an actual levy before 1868 created a specific lien, which was superior to the homestead right; while it was there held, on the contrary, that a judgment docketed in the county did not defeat the right. We do not deem it material to determine whether a docketed judgment, obtained on a contract made since the homestead provision was enacted (in 1868), has the force of a levy. The force of a levy is not sufficient to destroy a right of exemption from restraint or accountability for the enjoyment of the homestead profits, short of wanton or malicious destruction, derived directly or by implication from the Constitution. Moreover, it is settled that even where the judgment has been rendered on a debt contracted prior to the passage of the homestead law, the Sheriff is required to lay off the homestead in the judgment debtor’s land, and levy execution on the excess. A. judgment upon an old debt, therefore, does not operate as a specific lien and defeat the homestead right, if the excess sells for a sum sufficient to satisfy the debt. Arnold v. Estis, 92 N. C., 162.
The effect of the ruling of this Court is either to treat the owner of a homestead as a life tenant, or by the other theory to invite thousands of judgment creditors to establish a systematic espionage upon their debtors and bring them into Court to determine in the future, and as cases arise, when *197the “homesteader” shall cross the line of accountability in. the exercise of dominion over his land.
Uncertainty as to rights in property is next to a want of security in its detrimental effects upon the public. And this fact furnishes another reason for adhering to the well marked line, and holding that the “homesteader” could only be restrained from wanton or malicious waste, while the ordinary life tenant is entitled to destroy no more timber upon the land, outside of that necessary for fire-wood and repairs of house and fencing, than a prudent owner in fee simple, following the customs of the neighborhood, and in the exercise of good husbandry, would use.