Concurring with Furches, J., and Fair-Cloth, C. J., in the result, I concur fully with Aveet and MONTGOMERY, JJ., that “the right to a homestead in a tract of land may be lawfully reserved by the owner in a deed of assignment for the benefit of creditors which purports to convey the fee simple to the land subject to such right,” and that the homestead right is “not an estate but a determinable exemption,” which is conferred not on the land but on the homesteader, the right being personal and not in rem and not running with the land.
These positions seem to me to be settled by the numerous authorities cited-in their opinions. I also concur with brother Montgomery that the constitutional restriction against the convoyarme of the homestead without the join-der of the wife applies only where such homestead has been allotted. If, therefore, no judgments had been docketed against the homesteader after the deed of assignment was executed, I would concur in their conclusion, that said homesteader with the joinder of his wife could convey a good title in fee to the defendant. But such docketed judgments are unquestionably liens upon the homestead, though they cannot be enforced till the homestead right ceases. Burwell, J., (for the Court) in Vanstory v. Thornton, 112 N. C., on page 205. Now, the homestead right being personal to the debtor, ceases as to the allotted homestead whenever the lot is conveyed in the manner required by the Costitution, i. e. by deed with *679tbe joinder and privy examination of the wife. Whenever, therefore, the allotted homestead ceases to be a homestead by snch conveyance, the exemption being personal, and not a quality annexed to the land, ceases as to that land necessarily, and the judgment liens, if any, come into force ahead of any conveyance. If there are no judgment liens the grantee gets a good title, but if there are judgment liens, when the exemption, extended over the land on account of the right of exemption personal to the owner and occupier, ceases the judgment liens come in force; hence, in this ease I concur in the conclusion of Justice Furches and the Chief Justice that the plaintiffs cannot convey a clear unincum-bered title to the purchaser. The plaintiff having reserved the homestead in making the mortgage, that did not pass from him, but was laid off to him and the docketed judgment became a lien on 'it." Therefore, an unincum-bered deed for the homestead lot cannot be made. The homestead right on the other hand, being personal and inalienable, could not be conveyed to another with, or without, the homestead lot.
This view of the homestead it seems to me, is the one plainly authorized by the Constitution. It was so held by a unanimous Court in Fleming v. Graham, 110 N. C., 374, and is sustained incidentally by Allen v. Bolen, 114 N. C., 560. It is recog.nized by Shepherd, J. in Jones v. Britton, 102 N. C., on p. 180, when he aptly says that the homestead is “a mere stay of execution, nothing more, nothing less;” by Bthhm, J., in Bank v. Green, 78 N. C., 247 (a very able opinion) when he terms it ‘‘a determinable exemption from the payment of debts” conferred upon the homesteader “in respect to the particular property alloted to him;” by Avert, J., in Hughes v. Hodges, 102 N. C., 236, when he points out that PearsoN, C. J., had.corrected *680bis inadvertence of terming the homestead in Littlejohn v. Egerton, a “quality annexed to land,” by immediately adding “whereby it is exempted from sale under execution;” by Chief Justice Smith, in Simpson v. Wallace, 83 N C., 477, when he speaks of the debtor’s right as the homestead “privilege;” in Campbell v. White, 95 N. C., 344, when he speaks of it as “the measure of the privilege secured to the debtors” and in Markham v. Hieles, 90 N. C., 204 where quoting Bank v. Green, he italicises that the privilege is bestowed “upon him,” “in order,” as has been pertinently and forcibly said by Aveet, J., “to exclude the idea that any new quality attached to the land and impress the principle that it was in fact a personal privilege conferred upon the debtor, as has since been held distinctly in numerous cases.” If, therefore, the homestead, as so many cases hold, is not a quality or estate in the land, but a “determinable exemption personal to the homesteader,” a ueessat exeeutio,” a “mere stay of execution,” a “privilege conferred on the debtor,” then it would seem to follow, as the night follows the day, that when the homesteader with the wife’s joinder, conveys the homestead, as he is authorized by the Constitution, this personal right and privilege do not attach to the land and follow it in the hands of the grantee, but being personal it is attached to and follows the person of the homesteader who can assert it as a “privilege,” a “eessat exeeutio,” a “stay of execution” to “exempt from sale under execution” any other lot upon which he may fix his residence. Thus, lie may change his homestead from time to time, and not lose it in changing his residence as he would if the homestead right was annexed to the first homestead he had allotted him, and on its conveyance by him should pass to the grantee to be enjoyed by such grantee per auter vie while the homesteader, like the bowman who has shot his last arrow, would be defenceless or *681henceforward, like the Wandering Jew, unable to claim the shelter of a home from the storms and vicissitudes of life.
There have been conflicting decisions, it must be admitted, and two opinions by a divided Court have been lately rendered, taking a contrary view to this — Vanstory v. Thornton, 112 N. C., 196 and Stern v. Lee, 115 N. C., 426, the latter made by a bare majority. But it must be observed that the Court could not amend the Constitution, and amid this conflict of decisions the path of safety is to return to the letter of the Constiution “lest we make the word of none effect by our traditions. ” The words to be found in the Constitution provide this — merely this and nothing more— “Every homestead.... not exceeding in value one thousand dollars.owned cmd oean/pied by any resident of this State_shall be exempt from sale under execution. ” Clearly this is a oesscit exeoutio, and exemption from sale of that lot in favor of the “owner cmd ooou-fier. ” When by conveyance in the constitutional mode he ceases to be owner and occupier, the exemption from sale ceases. He cannot assign and convey the exemption from sale .to any one else, nor is his right to a homestead forfeitable. It is personal and follows him as a constitutional right, to be asserted by him as long as he lives, and by his minor children if he leaves any at his death, to any future lot which he may select as his homestead, and as often as he changes his residence by conveying the one he has. It is said, and doubtless with truth, that the constitutional convention of 1868 voted down the proposition to make the homestead a fee simple, and made it a life exemption on the ground that the latter was more favorable to the debtor, for if the homestead were an estate in fee simple annexed to and running with the land, a conveyance of it would deprive the grantor of" all future right to *682bomestead, since it “ conld not exceed $1,000, ” whereas if it were, as it was made, a mere exemption from execution, the debtor being authorized to convey the land (with his wife’s assent) he could assert a new homestead exemption, whenever in the requirements of our busy modern life, he might, find it convenient to change his residence. However this may be, seeing the constitutional provision in the light it is given me to see it, and placing on it the construction which in my imperfect judgment numerous decisions of this Court and the palpable patent meaning of the words require, I concur, though reaching this result by a different process of reasoning, with the conclusion of Mr. Justice Furohes and the Chief Justice that the judgment below should be reversed. Almost the identical point discussed in their opinions was held opposite to their contention by Peaeson, C. J., in Jenkins v. Bobbitt, 77 N. C., 385, where it was decided that a mortgage, reserving the homestead, was valid without the jcnder of the wife, since she could have no interest (except, of course, the contingent right of dower) either in the excess over the homestead or the reversion, and that case was cited and approved by Smith, C. J., in Murphy v. McNeill, 82 N. C., 221; hence I dissent from their reasons.