(dissenting): The homestead is prescribed and its limits defined by the Constitution. The Legislature has-no .power to increase it. Wharton v. Taylor, 88 N. C., 230. Of course neither can the Courts enlarge it. In construing its limitations we must look to. the plain, unvarnished language of the Constitution, and not back of it to some supposed public policy which caused the adoption of this constitutional provision, as to which minds may easily differ.
Looking at the Constitution itself, it is clear that the homesteader was given a life exemption — no more. There is no-indication whatever that he should have the power to exempt any part of his property from liability for his debts longer than his life. Another clause gives his children the right to claim the exemption for themselves during minority — and this it has been held they may do, whether the homesteader has had the homestead laid off or not. And still another clause provides that when there are no children, the widow may likewise have it laid off during her widowhood, if she have no homestead in her own right. The .only limitation upon this right of the widow and minor children is that it must be as to a homestead of which the father and husband is the “ owner ” when he dies. As to the homesteader himself, his right in the homestead dies with him. He has no *434interest therein which he can transmit' to another by devise to the detriment either of his creditors, his children, or his widow. Whatever right he had to protect the land from sale by virtue of the homestead dies with him, if he remains in possession of it till his death, and he cannot extend it by conveying the land to another, neither by deed nor by devising it in his will.
The Constitution, Art. X, sec. 3, provides that “ the homestead, after the death of the owner thereof, shall be exempt during the minority of his children, or any one of them.” Was the debtor here the “owner of the homestead” at his death ? If so, his minor children would have the benefit of a shelter for their heads till the youngest became of age. They, and they alone, after the death of the homesteader, have the right to longer postpone the enforcement of the just claims of his creditors, except in the case in which the widow can make the claim. This is a wise and beneficent provision, intended to shelter the helpless. But if the homesteader has conveyed away the homestead right to other parties by conveying away the homestead lot, where is the protection of the roof tree for the children ? What object could the Constitution have in protecting from his creditors these purchasers from the life tenant and leaving the minor children upon the cold charities of a heartless world ?
Now, I understand the majority of this Court to be of the opinion that if the homesteader convey the homestead, he cannot take a second, or a third, or a fourth, or a tenth homestead. This would seem clearly so in the face of the constitutional provision for a homestead “ not exceeding in value one thousand dollars.” Otherwise, during the homesteader’s life, there might be several homesteads outstanding in the hands of his grantees, each of one thousand dollars, exempt from liability for his debts. If the father, owning a homestead, die, not having had it laid off, the children can have it laid off under this provision of the Constitution. Gregory *435v. Ellis, 86 N. C., 579. But if the homesteader has already conveyed a former homestead,'and such conveyance protects it in hands of his grantee from judgment liens, even beyond his life, then either the children and the widow are deprived of the constitutional protection given them to the shelter of the homestead of which he dies in possession, or else the rights of the creditors are impaired by having two homesteads (or more) held against them, one by the children, or widow, and the other (or several others) by the grantees of the debtor, and this in the face of a Constitution which exempts only one homestead, and that “ not exceeding one thousand dollars.”
This confused state of things, it seems to me, is due solely to the fact that the homestead right and the homestead lot have not always been distinguished. The homestead right is personal and inalienable. It is the right to a shelter from the storms of life, to a roof tree. The homesteader can claim it as often and whenever he has the roof over his head. When he dies, his children, during their minority, can claim it as to the homestead their father owned when he died. As to the tract or lot of land over which, at any given moment, he claims the homestead exemption, the homesteader is empowered to convey that to prevent the tying up of realty. But to argue that with such conveyance there must also go the grantor’s homestead right, because otherwise the liens of judgment creditors might take the land and the conveyance would be futile, is, at best, the argument ab inconvenienti. It should not avail to change an “ exemption ” personal to the “ owner and. occupier of a homestead,” which the Constitution gives, into an “ estate,” or so-called “ quality,” which, invisible to mortal eyes, attaches to the lot and travels around with it into all the successive hands into which that lot of land may go. Besides, even'this argument loses sight of the fact that when the homestead lot is conveyed, there are not always liens upon it, and if liens, not necessarily for the full *436value of the homestead. And if the liens are for the full value, the homesteader need not convey. He can stand as he is. If he voluntarily, nevertheless, should see fit to abandon his shelter, the Constitution expressly authorizes him to do so as tovthe lot conveyed. But he has an inalienable and indefeasible power to assert his homestead right, not by proxy over the lot he has conveyed away, but in his own behalf, as to any other lot he may become the owner of, and his minor children and wife can assert it as, to any homestead he may be the owner of at his death. It is true, in the late case of Vanstory v. Thornton, 112 N. C., 196, this Court (though not by a unanimous bench)'departed from the then recent decision of Fleming v. Graham, 110 N. C., 374, and reverting to the older decision of Adrian v. Shaw, 82 N. C., 474, held that the conveyance of the homestead lot was not merely a conveyance of the land described, but also of an invisible “ quality ” attached to it by virtue of the grantor’s homestead right. Taking it, for the argument’s sake, that the latter case will be adhered to after the maturer thought which already, in so many instances (notably in Long v. Walker, 105 N. C., 90), has corrected the erroneous earlier rulings as to the homestead, still Vanstory v. Thornton does not go to the extent of holding that a person can convey an interest in land which he cannot devise, nor that the owner of a lifetime exemption, which expires as to him at his death, can prolong it after his death by conveying it to another. If anyone can claim the homestead right after his death, it is the minor child or widow, and not the g^gmtee.
The extension of the homestead exemption given to the minor children may last twenty-one years. That in favor of the widow (when there are no children) may last fifty or sixty years. Such instances are not infrequent. The Constitutional Convention certainly never intended that a man could take, say, a dozen homesteads, all at one time, notwithstanding liens of docketed judgments, and protect all twelve *437pieces of land from sale in the hands of grantees, nor that all twelve should be further protected after the debtor’s death, perhap.s for twenty-one years,- if there are minor children, or fifty or sixty years when there is a widow, and during all that time the children and widow receive no benefit from such extension of the exemption. Such a result would be against the common sense of mankind. The Convention, instead of that, would have given him one homestead in fee, which they voted down, in preference to a multitude of such as this. Our predecessors, handling a new subject, made a mistake in Adrian v. Shaw. This Court has not hesitated to overrule nine other erroneous rulings as to the homestead. There is every reason to overrule this, which is the greatest mistake of them all, and which, if allowed to stand, will surely jeopardize the existence of the homestead provision itself.
With the profoundest respect always for the opinions of my respected associates on this Bench, my convictions of my own duty prohibit my permitting it- to be understood that I yield assent now to the doctrine of Vanstory v. Thornton. In my humble opinion the principle there laid down is so clearly and palpably a misconception of the plain meaning and letter of the Constitution, which confers an “ exemption,” and nowhere intimates an intention to create a “ homestead estate” — it is so evidently, in my judgment, a construction against the best interests alike of the homesteader and of the just rights of creditors — and will so certainly lead us into inextricable confusion and uncertainty (of which the present case is a fair example), that I still deem it the wisest course to adhere' to what seems to me to be the plain meaning of the Constitution. In this way we will not only come to the' construction held by all the other States having similar provisions, but we will place our feet on the solid rock. If the homestead right is, as the Constitution calls it, an exemption — a cessat executio — there will be no conflicting or confusing questions like the present which can arise.
*438In reasserting the views expressed in the dissenting opinion in Vanstory v. Thornton, I am but following the precedent set by Chase, C. J., and Miller and Field, JJ., of the United States Supreme Court, in Washington v. Rouse, 8 Wall., 441, in which, dissenting from the oft-repeated and most unfortunate decision of that Court to the effect that a Legislature oould grant to a corporation an irrevocable and perpetual exemption from taxation, they say: “With as full respect for the authority of former decisions as 'belong, from teaching and habit, to Judges trained in the common law system of jurisprudence, we think that there may be questions,” of constitutional construction, “ which can never be finally closed by the decisions of a Court,” when contrary to the clear meaning of the Constitution. That in such cases the ruling of the Court must ultimately conform to the Constitution, and that the Constitution does not bend to the mistaken ruling of the Court, for the Courts have no power to amend the Constitution. They further add that they were strengthened as to that view by the fact that there had been a series of dissents to the preceding decisions relied on by the majority. So, as to Vanstory v. Thornton (itself by a divided Court), it followed, it is true, the older case of Adrian v. Shaw, held by a Court of three Judges, but it disregarded the later opinion of a unanimous bench of five Judges in Fleming v. Graham.
It is not necessary to go over again the reasons set out for the dissent in Vanstory v. Thornton. They will speak for themselves. But one additional argument will be drawn from a most recent decision of this Court. In Fulton v. Roberts, 113 N. C., 421, it is held, affirming a long line of decisions, and in accord with the palpable meaning of the Constitution, in an opinion by Justice Avery, that the homestead right ceases upon the removal of the homesteader from the State. If this is so when the homestead remains in the hands of the owner till his removal from the State, will it *439not be so when it is in the hands of his grantee? Can the homesteader convey a greater or longer right to exempt the property than he has himself? Can he make it greater than the Constitution gave it to him by simply conveying it to another? Will not the exemption cease, and the land become liable to his judgment liens in force at the time of the conveyance, on the removal from the State of the homesteader, equally whether he owns the land or has conveyed it to another? Does not the homestead also terminate as to the homesteader who is in possession “ owning and occupying” it at his death, leaving to his minor children and widow their right to claim it during infancy and widowhood? And if so, can he extend his rights and debar them of claiming a homestead in the land he leaves by having conveyed away a former homestead ? In truth, Fulton v. Roberts recognizes the true basis of the homestead, i. e., exemption in favor of an occupant. The Constitution gives an exemption to the owner and occupier if a “resident” of the State. It determines certainly upon the occupier ceasing to be a resident of the State. But it must equally determine upon his ceasing to be the owner and occupier. Each of the three requisites is named by the Constitution, and each is essential. It is true he can occupy it by a tenant, for the occupation of the tenant is the possession of the owner. But he cannot “ own ” it when he has conveyed it away, and such conveyance forfeits the right to exemption given only to the owner as surely as the removal to another State forfeits the exemption given only to a resident.
The homestead provision in different States and the judicial construction placed thereon vary much, but the decisions are uniform in this, that wherever á judgment is held to be a lien on the homestead, there, on a conveyance of the homestead, the lien can be enforced ; and wherever a judgment is held not to be a lien on the homestead, there a conveyance of it passes it exempt from liability. Thompson on Home*440steads, sections 398, 399. The only exception to this line of demarkation is Adrian v. Shaw, which recognizes that a judgment is a lien, whose enforcement the homesteader by his. occupancy can postpone, but which also illogically holds that such right or postponement can be transferred to the grantee of the homestead lot, to be enjoyed as fully as if the grantee was the homesteader himself. Our Constitution, however, contemplated only the protection of the homestead to the debtor himself and his wife and children after him. It did not embrace his grantee.
With all deference to my colleagues, I am of the opinion, therefore—
1. That the homestead right is' personal and indefeasible, save by death or removal from the State. That the conveyance of a lot of land over which a homestead right has been asserted neither alienates the right to assert it again as to another tract of land, nor does it go attached as a “ quality ” or “ estate” with the conveyed land so as to enable the debtor to maintain two or more homesteads outstanding at one and the same time against his lawful creditors.
2. That even if this could be true, still the grantee could not hold longer than the homesteader himself could have ■held if he had remained in possession. When he dies or leaves the State, the homestead exemption would determine equally in the hands of his grantee as it would if it had remained in the grantor’s possession. The grantee takes the land subject to the determination of the homestead exemption (when there are judgment liens at the time of the purchase), and the duration of the exemption in favor of the grantor cannot be altered or extended by his mere conveying the exempted property. When the exemption ceases by the homesteader ceasing to be a resident, the judgment liens on it come into vigor no more certainly than when by deed he ceases to be the owner of the lot.
I find no warrant in the Constitution for the proposition *441that a debtor can abstract from liability for his debts as many homesteads as he sees fit, all at one and the same time. Nor do I find, on the other hand, any warrant there for the proposition that if a homesteader convey away the homestead lot forever thereafter, no matter how many other lots of land he may own, he and his minor children and widow at his death are forever debarred from claiming a roof to shelter them when it may be needed most. Yet, if the homestead is an “estate” or a “quality,” to one of these two alternatives we must come. Either may be cruel and unjust, and either must bring upon us confusing and perplexing situations to solve. But I find nothing in the Constitution in regard to. the homestead being a quality or an estate. But I do find it called in the Constitution an “ exemption.” Treated as an exemption, the way is smoooth and clear. No complications can possibly arise. While the homesteader has the constitutional requirements of “owning and occupying” the lot, and being a “ resident ” of the State, he has his “ exemption,” not exceeding one thousand dollars of realty, protected from sale for debt. There is the plain letter and meaning of the Constitution. When he ceases to be a resident (Fulton v. Roberts, supra, and cases cited), or ceases to own and occupy the lot (Fleming v. Graham, supra), in either case that lot ceases to be protected from the liens in force against it by docketed judgments at the time of the conveyance, or from enforcement of any indebtedness when there is removal from the State. Should he “ own and occupy ” another lot, he can, if a resident of the State, claim it as his homestead.. Viewed as an estáte or quality, a doctrine which is not found in the Constitution, but first “invented” in Adrian v. Shaiv, the contradiction and confusion are interminable, and will become greater as we wander from the plain guidance of the Constitution. Viewed as an exemption, all difficulties vanish, and the constitutional homestead is beautiful in its very simplicity.