dissenting: Beyond question the decisions of this Court on the homestead right are regarded by the legal profession as sometimes inconsistent. And beyond doubt the profession is divided, as the Court has been, in their views respecting those decisions involving the nature and quality of the homestead interest from a constitutional standpoint particularly; some regarding the homestead right as a “determinable exemption personal to the homesteader,” a “mere stay of execution,” and others regarding it as a quality — estate—inseparable annexed to the land. The first view seems to me to be the *683settled determination of tbis Court, and it is best in my opinion to let the rule stare decisis prevail. Under the decisions made under the first mentioned view, many titles to land have been acquired through confidence in their correctness and stability, and they should be a rule of property. “When solemn determinations acquiesced under have settled precise cases and become a rule of property, they ought, for the sake of certainty, to be observed as if they had originally formed a part of the text of the statute.” Lord Mansfield in Wyndham v. Chetwyrd, 1 Burr, 419.
I cannot concur with Justice Furohes, who wrote the opinion in this case, in holding that Chief Justice Pear-soN, when he said in Littlejohn v. Egerton, 77 N. C., 379, that “a homestead right is a quality annexed to land whereby an estate is exempted from sa'e under execution from debt,” meant that this quality was annexed inseparably to every foot of land acquired by a married man since the adoption of the Constitution in 1868, however much that might be, and however free from debt he might be, and that as a consequence every deed for land acquired after 1868, made by a married man without the joinder of his wife in the deed, is absolutely void and the purchaser has andean have no title under it. It must follow from such a construction as a matter of course that, if the homesteader with his wife should convey his homestead, the purchaser would get the interest of the homesteader under the decision of Adrian v. Shaw, 82 N. C., 474, and the homesteader can ne\er have another homestead, because if so he would in effect have two, or more, which the law could not permit. And further, this view it seems to me puts an end to those estates which insolvent debtors have reserved to themselves in deeds of assignment made for the benefit of creditors, in which they have reserved their homestead exemptions and authorised the trustee to sell all the land except *684the homestead exemption. For in making such conveyances they have separated the homestead right from the body of the land, and this decision decides that this cannot be done. '
I cannot believe that this is the proper interpretation of Chief Justice Pearsoet’s language in Littlejohn v. Egerton, as quoted above and my reasons are partly as follows:
In Lambert v. Kinnery, 74 N. C., 348, Judge Eyttum for the Court (PeaesoN being Chief Justice) said: “The defendant having a vested estate in the homestead conferred by the Constitution can lose or part with it only in the mode prescribed by law, to-wit, by deed with the consent of the wife evidenced by her privy examination. Constitution, Art. X, Sec. 8.” But this Court in the case of Mayho v. Cotten, 69 N. C., 289, the same Judges composing the Court, had construed the meaning of the words quoted above in Lambert v. Kinnery, by declaring that Article X, Sec ion 8, of the Constitution, referred to the homestead after it had been allotted. And further, Chief Justice PeaesoN never afterwards referred to Mayho v. Cotten with disapproval, nor to Hager v. Mixon, 69 N. C., 108 which practically decided the same point. It is not to be denied, however, that there was conflict between these cases and the cases of Adrian v. Shaw, 82 N. C., 474 and Gheen v. Summey, 80 N. C., 187, and the inconsistency had to be removed either by modifying the positions laid down in Adricm v. Shaw, or by directly overruling the clear statement in Mayho v. Cotten, so as to fix a certain principle of interpretation of Article X, Section 8, of the Constitution.
In Hughes v. Hodges, 102 N. C., 236, this Court, with its personnel entirely changed, Smith being Chief Justice, confirmed and approved the ruling in Mayho v. Gotten, supra, with limitations which were deemed necessary, without altering the principles of interpretation adopted in the *685last named case. These limitations disabled the owner of land from conveying the same without the joinder of the wife (1) Where the land in question has been allotted to him as a homestead, either on his own petition or by an officer in accordance with law. (2) Where no h 'mestead has been allotted, but there are judgments against him which constitute a lien on the land, and upon which execution might issue and make it necessary to have his homestead allotted. (3) Where no homestead-has been allotted, but he has made a mortgage reserving an undefined homestead, which mortgage constitutes a lien on the land, which could not be foreclosed without allotting a homestead. (4) Where the conveyance is fraudulent as to creditors, and no homestead has been allotted in other lands.
In Scott v. Lane, 109 N. C., 154 the following is the opinion of the Court: “According to the defendant’s testimony, he was indebted to no one else when he executed the mortgages, and there is nothing in the pleadings and evidence to indicate that the mortgaged property had theretofore been allotted as a homestead. There was no restriction therefore upon the owner’s jus disponedi and the purchaser at the sale under the mortgage acquired a good title as against the defendant mortgagor subject to the contingent right of dower of the -wife if she should survive it. A case exactly in point is Hughes v. Hodges, 102 N. C., 236.
In Fleming v. Graham, 110 N. C., 374 this Court said : “In Mayho v. Cotten, 69 N. C., 289 it is said that Section 8, Article X, of the Constitution applies only to a conveyance of the homestead after it is laid off. This is cited and approved in Hughes v. Hodges, supra. It appears therefore from the authorities that Article X, Section 8, of the Constitution has been construed by this Court for nearly 25 years as applying only to the conveyance of the homestead after it had been allotted. There were some rulings *686in the meantime inconsistent with tliis principle of construction, but the decisions for a half dozen years past have removed these conflicts and established the former rules. As to the case before the Court, the debtor did not attempt to convey his homestead at all, but expressly reserved it from the operation of the deed in trust. I cannot concur with the Court in its disposition of this case.