dissenting : The five opinions filed will require careful consideration in order to determine how our former adjudications are affected by' the decision in this case.
The Chief Justice and Justice FueCi-ibs place, as I think, an entirely novel construction upon the language of Chief Justice PeaksoN in Littlejohn v. Egerton, 77 N. C., 379. They are of opinion that it necessarily follows from accepting the definition that “ a homestead right is a quality annexed to land, whereby an estate is exempt from sale under execution for debt,” that even where husband and wife join they cannot reserve in their deed the right to the enjoyment of the rents and profits of the homestead land until the end of the period of exemption, and convey the reversionary interest in fee simple. This conclusion seems to be founded upon the idea that the learned Chief Justice and the Court for whom he spoke meant that the right of exemption was indissolubly annexed or fastened to the fee simple estate. Such an application of an - abstract principle would, in my opinion, overturn the whole structure of homestead law thus far built up by the arduous labor and the indefatigable research of all of the Justices who have served the State for 25 years, and would lead to the still more deplorable and disasterous consequence of un-ettling titles founded upon the rules of property enunciated in them. Justice ClaeK concurs upon this question with my brother MONTGOMERY and.myself, and thns main*687tains tbe authority of many of our adjudications, but concurs with the Chief Justice and Justice Lurches upon other grounds in maintaining that the judgment below should be reversed, while Justice Montgomery and myself are of the opinion that it should be affirmed. That Chief Justice PbaesoN, who formulated the definition, did not give to it the construction now placed upon it by my brethren, is evident from the fact that at the term immediately preceding that at which. Littlejohn v. Egerton was decided, he concurred in the opinion of Justice Reade in Barrett v. Richardson, 76 N. C., 429 that where land was sold at execution sale “subject to the homestead” the purchaser acquired the fee simple, to take effect at the falling in of the homestead right. Chief Justice Pearson had too accurate a knowledge of the adjudications of the Court, over which he presided, to overrule a decision within a year after its rendition without knowing it, and both he and his associates were too manly to designedly make such' a change and conceal or fail to state the facts. Any such imputation upon their candor or consistency can be avoided however if we adopt the theory for which I now contend, that in applying this abstract definition the Court meant that the quality attached only till the period of exemption ceased, or ordinarily till the death of the homesteader and the attainment by the youngest child of its majority. The termination of that period fixed a contingent limit, after which the unincumbered right to enjoy the fee simple might be conveyed or reserved. The same learned justices, who then composed the Court, had prior to that time distinctly recognized, as their successors afterwards did, the authority of the legislature first to provide for the separate sale of the reversionary interest in homesteads and subsequently after thousands of such sales had been made to prescribe by the Act of 1869-70, Ch. 121, that no such *688sales should thereafter be made. McDonald v. Dixon, 85 N. C., 248; Cotten v. McClenahan, 85 N. C., 254; Cobb v. Hallyburton, 92 N. C., 652; Lowdermilk v. Corpening, 92 N. C., 333. We must note the fact in this connection that the reversionary interest of thousands of the'persons who filed petitions in bankruptcy was sold by decree of the Federal Courts and bought by our people under the impression that we would adhere to our decisions and protect their rights.
Rut if the right of enjoyment during the period of exemption cannot be sold as an interest separate and distinct from the right to enjoy the fee after expiration of such period, this Court at every subsequent stage of its history has continued to misapprehend the meaning of the definition in Littlejohn v. Egerton as completely as did the Court in 1877 when they failed to declare Barrett v. Richardson overruled. Four years later (in 1881) Justice RuffiN, one of the ablest jurists and most diligent and painstaking students who ever adorned this bench, again reiterated the ruling that a valid sale might be made “subject to the homestead.” Wyche v. Wyche, 5 N. C., 96. Again, still later (in 1885) Chief Justice Smith delivering the opinion in Lowdermilk v. Corpening, 92 N. C., 333 the Court gave' its sanction to the separation by a sale “subject to the homestead” and both he and Justice RuffiN based their conclusions not upon the ground that the sales were made to satisfy old debts but m spite of that fact, or, as the idea was expressed by the latter, “even though the debt be one against which no such right existed.” The two last named cases expressly refer to Edwards v. Kearsay, and declare that it does not affect the principle enunciated. In Long v. Walker, 105 N. C., 90, the Court again held that though the execution creditor might, when his debt had been created before the homestead provision was engrafted in our *689Constitution, sell the whole fee, he might also at his option sell “subject to the homestead.” As late as the period when the opinion in Ladd v. Byrd, 113 N. C., 466, was filed (September term, 1893) another Court gave its sanction to the power of the execution creditor to sell “subject to the homestead.” It thus appears that not less than fourteen justices have been inadvertent to any such possible construction, as it is now proposed to place upon the language of Chief Justice PeaRSON, and through such inadvertence have invited the confidence of the legal profession and the people in the rules of property, which would be overturned by the new doctrine.
It is conceded that the sanction of the Court was given to the validity of the reservation of the homestead' right by assignors in making general assignments of their property, both in Bank v. Whitaker, 110 N. C., 345, and Davis v. Smith, 113 N. C., 94, and that dicta to the same effect appear in Bobbitt v. Rodwell, 105 N. C., 236, Eigenbrum v. Smith, 98 N. C., 207. Ladd v. Byrd, supra, and cases which had preeded it, had authorized the separate sale of the reversionary interest, subject to the incumbrance of the homestead right, and it had been expressly held in that ease, as well as in Lowdermilk v. Corpening, supra, that in such cases the purchaser of the reversionary interest must await the expiration of the period of exemption before his right accrues. In Bank v. Whitaker, supra, and Davis v. Smith, the right of the debtor by reservation in his deed to make the separation just as the husband' of the feme plaintiff did in the case before us, was as fully recognized. If, then, any respect is to be paid to these adjudications, or any consideration is to be given to the fact that titles depend upon them as rules of property, we should adhere to them, and hold that Thomas .passed the-title to the-reversion ary interest, reserving his right of homestead. If author*690ities are'worthy of a moment’s consideration, we might add that Adrian v. Shaw and a number of cases in which the same doctrine has been approved!, establish the principle that the deed of the homesteader with the joinder of the wife passes the right of enjoyment, free from sale under execution, for the life of the homesteader at least, thus again indicating a possible limit to the right of enjoyment when the liens are not removed. Justice Furciies, in his opinion says: “We have shown in the former part of this opinion that he (the homesteader) could not sell the estate and reserve the homestead which is a condition annexed to the land and runs with the estate.” The proper construction of this language is admitted by him to be that the portion of the estate covering the period of exemption can in no case be separated from the reversionary interest, and upon this abstract proposition it is insisted that Hughes v. Hodges, the overruling of which seems to be the objective point, cannot stand. But neither can any early case, in which the courts, State and Federal, recognize the sales of reversionary interest of bankrupts if the construction contended for is to be placed upon Littlejohn v. Egerton. How many titles depend on the validity of these sales? How many sales of reversionary interests were made before the Act of March, 1870 ? Must all of these fall under the executioner’s axe in order to reach Hughes v. Hodges ?
It is not possible that Chief Justice PearsoN did not understand his own language when he agreed to these decisions and also to Barrett v. Richardson, or that Rue-EiN, J., failed to make the discovery when he wrote Wyche v. Wyche, supra. It is manifest that Chief Justice Smith did not take this view, because he not only wrote Lowdermilk v. Corpening, supra, sanctioning a sale made “subject to the homestead,” but he afterwards followed BthuM, speaking for the old Court, when, in Bank v. Green, he said that *691the homestead right was a personal one ‘^conferred upon” the homesteader, thus modifying Littlejohn v. Egerton, so as to make the homestead a mere personal privilege, as my brother ClaeK contends from the beginning. However, that difference amongst my brethren may be adjusted. The next question raised is whether Hughes v. Hodges is founded upon a correct principle :
1. The opinion is based upon the fundamental idea that the right of alienation is a vested right which is restricted only in so far as the government for the good of society has found it necessary to restrict it. The only case cited on the point was Bruce v. Strickland, because it was unnecessary to cite other authorities to sustain this handbook principle.
2. The next proposition was that the power of the male olvner to alien his land was restricted only by the inchoate right to dower and homestead, and there was no constitutional or statutory provision prohibiting his conveying, subject to the contingency of dower.
3. It was held that the restriction as to the homestead did not arise till the right to the homestead accrued and the fundamental right of alienation remained unrestricted till that period.
4. It was held that the right did not- arise till something occurred which proved the husband’s insolvency, unless the husband upon his own voluntary petition caused a homestead to be dedicated to his family.
5. It was declared that when the homestead was allotted in his petition, the right accrued by .his own voluntary surrender of his light of alienation.
6. It was held that an outstanding lien in favor of a creditor, whether by judgment or recorded mortgage, was evidence of insolvency, and that when it was found that a *692deed was executed to defraud creditors, the right ipso facto attached.
If in our case the deed of Thomas had been attached on the ground that it was executed in fraud of creditors and the jury had found the allegation of fraud to be true, then under Hughes v. Hodges the homestead right would have attached and the mortgage deed would have been declared void. But the deed has not been assailed, and must be deemed to have been made in good faith.
The opinion of Justice Eurohtds assumes that the reservation of a homestead ipso facto proves insolvency. Can that be true? Does a voluntary petition to allot a homestead show insolvency ? If not, why should the reservation of the right to have one allotted prove it ? If this is not true, then the facts in this case do not bring it within the exception in Hughes v. Hodges.
The opinion of my brother ClarK, as I understand it, is founded upon the views heretofore presented by him in two dissenting opinions as to the right to alien a homestead, and the speculative question whether a resident of the State may sell one homestead with the joinder of the wife (as prescribed in Article X, Sec. 8, of the Constitution) and invest the proceeds of sale in another. If it were pertinent to embark.in the discussion, or if it were still an open question another extensive field for investigation and inquiry would be' presented. But it would seem that if decisions affecting the homestead are not legal anomalies, the agitation of these questions ought to cease. I refer without further comment to Stern v. Lee, 115 N. C., 429, Baker v. Leggett, 98 N. C., 304, Adrian v. Shaw, 82 N.C., 474, and the same case on the rehearing 84 N. C., 832, Vanstory v. Thornton, 112 N. C., 196, and the same case 114 N. C., 375, Gardner v. Batts, 114 N. C., 496, and Ladd v. Byrd. 113 N. C., 466.
*693The Chief Justice and my brother Furohes do not concur with my brother, nor does he with them, as to the grounds upon which they reach the conclusion that the judgment in the case at bar should be reversed. So that, as no more than two members of the Court concur in any new theory advanced, the net result of the discussion is to develop a wide divergence of views, but to overrule no opinion heretofore delivered by this Court. As no one of the five opinions filed is, as a whole or beyond the order reversing the judgment below, the ruling of the Court, it may avoid confusion to call special attention to that fact. Personally, I think it fortunate for the State that these rules of property have come through the conflict of views undisturbed. Whether right or wrong, when every one of the questions settled by them was res integra, now that titles have been founded upon them, they should be deemed sacred. Indeed such is the respect paid to this principle by the Supreme Court of the United States, that while it is the custom of Federal tribunals to adopt the construction placed by the highest appellate court of a State upon its own Constitution and statutes, that principle will be departed from where the State tribunal by overruling its own adjudications destroys a rule upon which property rights have been founded. The Supreme judical authority of a State may bring itself within the inhibition against impairing the obligation of contracts 'by interfering with rights vested under its decisions, just as a legislature may subject itself to the same condemnation by attempting to divest rights vested under statutes passed by it. 7 Myers Fed. Digest, p. 93 ; Patterson Fed., c?rc., on State Action, pp. 146, 147; Olcott v. Supervisors, 11 Wall., 678; Ford v. Sargent, 97 U. S., 694; Ohio, &c., v. Devot, 11 How., 432; Havmeyer v. Iowa City, 3 Wall., 303. We cannot however, as has been suggested, overrule'our own adjudica*694tions, because it would be a violation of the Constitution of the United States to give to the new ruling a retroactive effect. To violate our obligation to support the Federal Constitution, upon such ground, would be to recognize the vicious theory that we may do what is morally wrong, in the hope that the end may justify the means of attaining it.
Not concurring with some positions taken by the Chief Justice and Justice Fubches on the one hand, and taking issue with my other brethren upon some other points, none of which will acquire the force of adjudication by a majority of the Court, I wish to enter my dissent only to the conclusion'of the majority that the purchaser did not acquire a valid title. When Thomas executed the deed, of assignment, there was no outstanding lien of any kind upon the property. It was therefore valid as conceded by my brother Clabe, on the day of its execution. It does not hppear that any judgment liens were acquired between that date and the sale of the reversionary interest under the deed of trust, nor does it appear ‘when the homestead was actually allotted. But before the allotment a judgment was docketed. Whether the judgment was acquired 'befoie or after the sale by the trustees is riot material, foT if the deed of assignment was valid'fdf a moment, the lien acquired iinder it ciou'ld not be ousted by thait of the subsequent judghieut, which was inferior to it. If Bowen, the 'pritchaser under tlie deed of assignment, acquired title to fthe reversion, "then his good faith bein|j unquestioned ’he passed it 'to the feme plaintiff. If the fefrie plaintiff 'acquired the'reversionary Interest 'in her own right with the’constitutional'authority'to'convey the same with the written‘assent "of the husb'and 'signified by his joitlder in the dSed, ahd if the'two are expressly "ehipoWerdcL "b’y the '’Constitution, Article N, ’’Section 8, tb'convey the hdme: *695stead, I am utterly unable to conceive why the deed tendered in this case was not a good one. True, in Mayho v. Gotten, there was an intimation that the husband’s jus disponendi was not taken away by the homestead provision until there was an actual allotment made, but the inhibition upon his right was further extended in Hughes v. Hodges, supra.
I cannot concur in the opinion that the provision of the Constitution allowing the alienation of homestead shall be annulled by so interpolating the proviso that the right shall be limited to instances where no lien is acquired before allotment.