dissenting: There is a distinction between the homestead and the homestead right: the former is the lot of land exempted from sale; the latter is the right to have it exempted, to use and occupy it free from molestation. The former the Constitution permits to be conveyed, but only with the wife’s assent and privy examination; the latter cannot be conveyed to another; it does not pass by a conveyance of the land; it is not- property, but a personal privilege extending (in certain cases) to the minority of the children and the widow. An inadvertence of expression in some of the opinions as to this distinction has led to some confusion and misapprehension. It seems that North Carolina is the only State in which it has ever at any time been held that a conveyance by the debtor of the homestead carried with it an assignment of the homestead right. Waples on Homestead, 327, note 5, and 374, noted; Brame v. Craig, 12 Bush., 404. And upon the plain language of the Constitution, upon the weight of our own later decisions, and the reason of the thing, it is difficult to see how.the assignability of the homestead right can be maintained here. Concurring as I do as to the rest of the opinion, I must, therefore, dissent from so much of it as-holds that, as to the proceeds of the sale under a mortgage of the homestead, the lien of a prior docketed judgment is displaced in favor of the mortgagees under the subsequently executed mortgages, during the life of the homesteader.
*212The opinion of the Court, in this case, says, “The statute law and the decisions of this Court, beyond all question, make a docketed judgment a lien on the homestead land.” In Jones v. Britton, 102 N. C., 166, the opinion of the Court in chief (by Merrihon, J.) says, “Exemption from sale alone distinguishes the homestead lands from other lands of the debtor.” It seems to me it inevitabty follows that when by the mortgage and sale under it the “ exemption from sale” is lost, the lien of the prior docketed judgment takes precedence in the proceeds over the subsequent mortgage, as would be the case with “the other lands of the debtor” from which it is no longer distinguished by an “exemption from sale.”
To obtain a clear conception of the effect and extent of the homestead exemption in this State it is best to have the constitutional provision before us. It reads: “Every homestead, and the dwellings and buildings used therewith, not exceeding in value one thousand dollars, to be selected by the owner thereof, or in lieu thereof, at the option of the owner, any lot in a city, town or village, with the dwellings and buildings used thereon, owned and occupied by any resident of this State, and not exceeding the value of one thousand dollars, shall be exempt from sale under execution, or other final process obtained on any debt.” Const., Art. X, sec. 2.
An analysis of this clause will show, among others, the following requisites to the homestead claim:
1. The claimant must “own and occupy” it.
2. Pie must be a resident of the State.
3. The lot protected as a homestead, with buildings thereon, must not exceed in value one thousand dollars.
4. No estate in the homestead is granted, but the lot so set apart is merely protected for the time specified (during owner’s life and until his youngest child becomes of age); *213i. e., it “shall be exempt from sale under execution,” nothing more.
5. By Article X, section 8, the homesteader is authorized, to convey the homestead with the privy examination of the wife.
Considering the whole of the provisions in Article II, supra, which creates the homestead, it is clear that the authority to convey the same is the authority to convey the lot over which the homestead exemption has been extended, and not the homestead exemption itself, which is a right personal to the debtor and not capable of alienation. The word “homestead” in section 8 is used in the same sense it bears when used as the first word in section 2; i. e., the lot or home place, which is authorized to be made exempt. When the homestead is conveyed, the grant is only of the ' lot which has been sheltered from execution so long as it was “ owned and occupied ” by him. It passes by his conveyance out from under such shelter -and becomes liable to any lien which would have been enforced against it but for the exemption which he waived by the conveyance. The homesteader does not and cannot part with his constitutional right to claim a homestead exemption from execution. He can, immediately after the conve3Tance of the homestead lot, spread its protecting regis over any other lot owned and occupied by him.
Whenever the claimant ceases to “own and occupy” a lot it ceases to be entitled to the exemption from execution. The constitutional requisite is gone. He may occupy it by a tenant, for the tenant’s occupancy is his. But when by deed, with his wife’s privy examination, he conveys it away, _ the grantee gets the grantor’s whole interest subject to liens, but without exemption from execution, which exists only in favor of the owner and occupier of the lot. He does not “own and occupy” it after the conveyance to another. In *214like maimer, should lie cease to be a resident oí" the State, the right of exemption would cease (Finley v. Sanders, 98 N. C., 462), even when he leaves his wife and children here. Baker v. Leggett, Ibid., 304; Munds v. Cassidey, Ibid., 558, and Lee v. Mosely, 101 N. C., 311. So when, by reason of the improvements he shall place upon it, the value violates the Constitution by exceeding $1,000, the exemption ceases as to the excess, and there may be a re-allotment, Vanstory v. Thornton, 110 N. C., 10. Now, also, by the recent act of the Legislature (of 1893) the exemption ceases as to the excess and there may be a re-allotment, when for any cause there is'a substantial enhancement of the value of the lot 'beyond the constitutional $1,000 limit.
It is true it was held in Adrian v. Shaw, 82 N. C., 474, and same case, 84 N. C., 832, that the homestead right was an estate in the lot, but that was not warranted by the Constitution which confers only “an exemption from sale under execution” (in favor of a resident owner and occupier), and has been in effect overruled in several cases. Hughes v. Hodges (Avery, J.), 102 N. C., 236; Jones v. Britton, Ibid., 166; Fleming v. Graham, 110 N. C., 374, and virtualty in divers other cases. The main point in Adrian v. Shaw was that the homestead did not cease on removal from the State. The contrary is held in cases above recited.
In Jones v. Britton, supra (on p. 180), Shepherd, J., says the homestead right is a mere “stay of execution, nothing-more, nothing less.” Avery, J., in Hughes v. Hodges, supra, points out that Littlejohn v. Edgerton had been misconceived, and that while the learned Chief Justice had there spoken of the homestead as a “ quality annexed to the land,” he had immediately explained it by saying “whereby the estate is exempted from sale under execution ” ; by “ estate ” meaning the debtor’s whole interest. In Jones v. Britton, supra, Mkrrimon, J., as quoted above, says that “exemp*215tion from sale alone distinguishes the homestead land from the other lands of the debtor; that the homestead right creates no new estate, and adds no new right, but “merely suspends a sale.” If the homestead right is a more “stay of execution,” “ a suspension of a sale,” it is a privilege, and cannot be assigned away.to another.
Apart from the repeated decisions holding the homestead right not to be an estate in the land or a quality annexed to it, it is clearly not so :
1. The words of the Constitution can by no reasonable construction bear out that idea. Nothing in the land is given. The owner already has that iii fee. The Constitution only gives him a right to own and occupy it “exempt from sale.” It merely puts up a shelter over him and stays the Sheriff’s hand with a “ cessat executio.”
2. If the homestead right was an “ estate ” in the land, it would be valued accordingly, and to get the $1,000 the quantity of land allotted would depend upon the age, health, expectancy of life, etc., of the claimant, otherwise the homestead estate of some would be more valuable than that of others. But it is the lot and buildings over which the protection is spread, which are to be worth “ not exceeding $1,000.” This shows that the “ homestead ” right is the exemption extended as a shelter above the lot, and not an estate in the lot itself.
3. If' the homesteader had an estate in the land for his life, the crops or other income from it would be his. But as he has no estate in it, and merely a right to “ own and occupy ” it free from the presence of the Sheriff, the income and crops are liable to his creditors. Bank v. Green, 78 N. C., 247. The opinion in this case by Mr. Justice ByNum is one of very clear conception and one of the ablest discussions of the homestead ever made by the Court. It is well worth the fullest consideration. In it, it is said that *216the homestead creates no new right of property, but merely exempts $1,000 of it from sale; that it is “not a determinable fee-, but a determinable right of exemption.”
4. If the homestead right was 'an estate in the lot, whenever it was once conveyed away it would be gone forever and the homesteader would henceforth be without right to any homestead. The law surely does not contemplate that, like Esau, he should part with his birthright, or that an unmarried man by sale of his alloted homestead shall deprive his future wife and children of a right to shelter, however much realty he may retain or subsequently acquire.
Being, however, as this Court has repeatedly held, not an estate but an exemption, the sale of the lot does not carry the exemption along with it. If it did, either—
1. The homesteader could forever thereafter claim no other exemption; or,
2. Pie could take another homestead lot and impart to that the exemption quality or estate and convey it together with the exemption tacked to it, and so on ad infinitum. Suppose in this way a debtor has successively taken and then conveyed away, say, a dozen homesteads; the day the homestead right determines by his death (or youngest child becoming of age after h is death) $13,000 of real estate would become subject to sale under executions docketed prior to his successive conveyances. Thus, up to that event, $13,000 would "be exempt from executions against him. Yet there is the constitutional provision, too plain to be misunderstood, that “not exceeding $1,000 shall be exempt from sale under execution.”
This is not the argument ab inconvenienti. It is the plain, simple language of the Constitution, nothing added and nothing taken from it. The argument ab inconvenienti. is made by the opposite side that it is hard to tie a man clown to one homestead, and that he is merely taking the pro-*217coeds of the sale of one homestead with which to buy another, and so on down the line of successive homesteads. If this argument ab inconvenienti could be entertained against the express language of the Constitution, it may be observed-—
1. The homesteader is not compelled to sell; he may rent out, and thus still “own and occupy,” and with liberty to rent for himself another home.
2. The homestead, or life right, in a $1,000 lot will not bring him the $1,000 the fee-simple is worth, and when he proceeds to take another $1,000 lot as a homestead, he is adding money due his creditors to the exemption allowed, and in several successive sales of a life right in one $1,000 lot and the purchase of the fee-simple of another $1,000 lot, he will put in largely more than the “$1,000 exempt from execution,” beyond which amount he is forbidden to go.
Besides, he can convey the homestead right (if it is true it can be conveyed) to his grantee in no better plight than he himself held it. If he puts improvements on the homestead, it is subject to re-valuation. Vanstory v. Thornton, 110 N. C., 10. Will it not be subject to re-valuation if his grantee puts improvements on it? He can convey no greater exemption right than he had. And it is surely not public policy that where a man has conveyed several successive homesteads each shall lie dead, deprived of improvements for fear of re-allotment.
Again, while the homestead is in possession of the homesteader, the incoming crops are liable to his debts. He has only the. right of use and occupancy. Bank v. Green, supra. As he can convey no greater exemption to his grantee than the law has given himself, it follows that-the crops and income from each of the successive homesteads is liable to the grantor’s debts, and the temporary holders can only have the right to use and occupy.
*218And .still again, under the late act of the Legislature the lots protected from execution by right of the homestead are subject to .re-valuation whenever they “exceed $1,000.” When there have been successive homesteads allotted the creditors can have them re-allotted under the act, and if the aggregate amount “exempt from execution” exceeds $1,000, a re-allotment, would expose the excess to sale, leaving only the $1,000 then “owned and occupied” by him sheltered from the Sheriff. He cannot give to the successive grantees an exemption of the crops, and from re-valuation, which he himself does not possess.
The decision in Adrian, v. Shaw ceased to have any logical force when the Court held, as it has since repeatedly done, ut supra, that the homestead right was not an estate in the land, but a mere exemption, or cessai exeouMo. If so, it is personal to the debtor and he cannot convey it away. He can convey away the homestead land. If there are no judgments or other liens, he can give a clear title; if there are such liens, he can convey only his title, subject to the liens, since he waives, as he is empowered to do, his homestead light to protect that lot of land from sale, because ceasing by his deed, with his wife’s assent, to “own” it. líe can acquire as many successive homesteads as he pleases and protect them by the homestead right, but as to each the homestead right ceases when he ceases, respectively, to own them. He has but one homestead right. He can put that up over successive lots of $1,000, but he cannot alienate it or give any one else the benefit of it.
That the right is restricted to ownership of the lot is further shown by section 3 of Article X, which exempts the homestead “after death of the owner thereof during minority of his children,” and section 5 for the benefit of widow of “owner of a homestead,” meaning the homestead *219of which, lie was owner at the time of his death. Both these sections extend the exemption after the death of the owner of a homestead, showing that only one homestead is exempted longer, and that is the one he owns at his death. Certainty the conveyance of a homestead cannot possibly be construed to embrace the existence of the homestead right after the homesteader’s death, for that contingent right is solely for shelter of his children or widow and is only given as to a homestead of which he is owner at the time of his death. The children can have it allotted if he has not done so. It is theirs, not his. Yet if one homestead right is not assignable by the homesteader, is there anything to indicate that the other is? As was noted in a former decision of this Court, the homestead having been introduced by the Constitution of 1868, it was new to our Courts and the construction given to it has not been uniform. In at least ten points the first view taken has been subsequently overruled.
1. The Court held the exemption applied to pre-existing-debts, Hill v. Kesler, 63 N. C., 437, .and numerous other cases. This has not been so since Edwards v. Kearsey, 96 U. S., 595.
2. It was held that the homesteader might be estopped to claim it by his declarations. Mayho v. Cotten, 69 N. C., 289. This was expressly overruled in Hughes v. Hodges, 102 N. C., 236, which affirms the contrary to be the law since Lambert v. Kinnery, 74 N. C., 348.
3. It was held that the homestead was a “determinable fee.” Poe v. Hardie, 65 N. C., 447. This is overruled in Bank v. Green, 78 N. C., 247.
4. It was held not impeachable for waste because a determinable fee. Poe v. Hardie, supra. In Jones v. Britton, 102 N. C., 166, it is now held that the creditor can, by injunction, restrain waste.
*2205. It was held that the amount could be increased (though not diminished). Martin v. Hughes, 67 N. C., 293. In view not only of the constitutional provision that it “shall not exceed $1,000,” but of the provision limiting the duration of the homestead exemption to the minority of the children, this was reversed in Wharton v. Taylor, 88 N. C., 230, and the act which had been passed prohibiting the lien of the docketed judgment on the lot sheltered by the homestead was repealed at the next session of the Legislature. Acts 1885, ch. 359.
6. It was held that the homestead was not absolutely void as to debts contracted prior to the constitution, but only if it appeared there was not property sufficient outside of the homestead. Albright v. Albright, 88 N. C., 238; Morrison v. Watts, 101 N. C., 332. This was reversed in Long v. Walker, 105 N. C., 90.
7. In Adrian v. Shaw, supra, it was held that the homestead was not forfeited by the homesteader’s removal from the State. It is held otherwise in Finley v. Sanders, 98 N. C., 462, and other cases supra.
8. It was held that once allotted the homestead could not be re-allotted. Gulley v. Cole, 96 N. C., 447. This was in part reversed by Vanstory v. Thornton, 110 N. C., 10, and is now entirely changed by the Act of 1893.
9. In Adrian v. Shaw it was held that the homestead was an estate in the land. In repeated decisions above cited that has been reversed, and it is held a mere exemption right.
10. In same case it was held the conveyance of the homestead land carried with it the homestead exemption of the debtor. This was denied in Fleming v. Graham, supra.
Reverting to the plain letter of the Constitution, and taking the benefit of the “sober second thought” of the *221Court in each of tlie above particulars, we arc fortunate in finding the way cleared for us. Upon those decisions, as held in the overruling and later opinions in each particular, we should hold, first, that the homestead does not apply to debts existing prior to the Constitution; secondly, that the homesteader cannot be estopped to claim it; third, that it is a determinable exemption, not a determinable fee; fourth; that waste' thereon can be restrained on application of a creditor; fifth, that it cannot be increased beyond $1,000, nor can the judgment creditor be deprived of his lien on it by any legislation; sixth, that it is void as to debts existing at the adoption of the Constitution whether there is enough other property or not to satisfy executions; seventh, that it is forfeited when claimant ceases to be a resident of the State; eighth, that when, by improvements placed upon it, or by enhancement of values, it exceeds the constitutional limit of one thousand dollars, it can be re-allottecl; ninth, that the homestead is not an estate in the land, but a mere exemption from sale, and tenth, the conveyance of the homestead land does not alienate or convey the homestead right therewith. Fleming v. Graham, 110 N. C., 374. The grantee gets the land subject to liens and without benefit of the grantor’s homestead right, which protected it only while owned by him.
Adhering to the law' thus mapped out for us by the latest decision in each particular case recited, the road for the future would be free from embarrassments. We have but to march where the wisdom and experience of our predecessors have pointed out the road.
There are numerous decisions in other States confirmatory of these view's. Waples on Homestead. But the constitutional provisions in different States as to the homestead are so variant it is doubtless better to place ourselves on the plain provisions of our own Constitution and avail ourselves *222of the latest and bettor opinion of the Court in construing each point above discussed. It may be objected that it will work damage to hold as indicated in Fleming v. Graham, since land has been conveyed under the ruling in Adrian v. Shaw. But there cannot be many such conveyances, both because people are not prone to buy estates determinable on the death of another, and because Adrian v. Shaw has been shaken by so many decisions since. Were it otherwise, the Constitution is the sole creator of the homestead. Edwards v. Kearsy, supra. The Legislature (as has been held) itself cannot enlarge it, “nor can the Courts do so by judicial legislation.” SMITH, C. J., in Jones v Britton, supra. When a mistake has been made the Court should conform its erroneous opinion to the Constitution, and not the Constitution to its erroneous ruling.
A difference should be noted between the homestead and the personal property exemption. The articles embraced in the latter are owned absolutely, and can be sold absolutely. No “exemption” is conveyed to the purchaser. There can be no lien on them whose enforcement is prevented by the exemption. They stand just as the conveyance of the homestead when no lien has attached by a docketed judgment, when, of course, the grantee gets the full estate. Hughes v. Hodges, supra; Scott v. Lane, 107 N. C., 154. But as to the homestead, when there are docketed judgments, the debtor has only the privilege of “'use and occupancy”; he can only convey it as he would any other land, i. e., subject to such lien, and he cannot convey to the creditor his right to “use and occupy” it exempt from sale. The reason the Constitution gives the right to convey the homestead lot is not far to seek. In many States it had been held that an allotted homestead was inalienable. This clause was put in to prevent tying up land in that mode in this State.
*223Upon reason, and tlie above authorities, the homestead right is a privilege of exempting $1,000 from sale. It is personal and cannot he alienated, but it may be waived as to any particular lot by ceasing to be a resident of the State, or by ceasing to own and occupy the lot.
It has been waived or lost as to this lot by the mortgage and sale under it, and the homesteader cannot give to his mortgagee a right to the use of the proceeds when he has himself lost the right to “use and occupy” the lot.