concurring. On the 5th day of September, 1893, Blaney Joyner made and executed a deed of trust to one Allen Warren, upon the land in controversy, containing about 4-50 acres, and worth, according to the evidence, somewhere about $4,000. Blaney, at the time of making the trust, was a married man, Jackey Ann Eliza Joyner being his wife, who did not join in the making of s'aid deed of trust, and never signed nor acknowledged the execution thereof. This land was afterwards sold under the deed of trust by the trustee therein named, and was bought by one Davis, in trust for Blaney, who, at the instance of Blaney, conveyed the same to J. A. E. Joyner, and she and her husband Blaney joined in a mortgage to said Davis to secure the purchase money. Bla-ney did not live long after this transaction, and since then the said J. A. E. Joyner has died, leaving a last will and testament devising said land to the defendants', who are her nieces — neither she nor said Blaney leaving children or lineal descendants surviving them.
The debt secured by the mortgage of Blaney and wife to Davis has been paid, mostly before the death of Blaney, and the residue before the death of Jackey Ann Eliza.
The deed in trust to Warren was in form a deed in fee sim*333ple, with this provision: “Subject to the homestead exemption of Blaney Joyner.”
The plaintiffs are the heirs at law of Blaney Joyner, and elaim that as said land belonged before the deed to Warren, belongs to Blaney, and as' said deed conveyed nothing, the land belonged to Blaney at the time of his death, at which time it descended to them, and this action is brought to recover possession thereof.
The plaintiffs claim, first, that Davis bought the land for Blaney at the trust sale of Warren, and therefore held the same in trust for him. I do not think this is denied by the defendants, but they say that said trust was discharged when Davis made the deed to J. A. E. Joyner at the request and direction of Blaney; and no new trust was declared when this deed was made, nor when the mortgage was made back to Davis to secure the purchase money he had paid for the land at the trust sale made by Warren. I agree with the contention of the defendants, and with the opinion of the Court as to this transaction between Davis and Mrs. Joyner.
But as to the other point presented by the ease on appeal, as to whether the deed of trust from Blaney to Allen Warren conveyed the land therein named and now in controversy, I differ from the opinion of the Court. In my opinion, Blaney could not convey this land without the joinder of his wife, and the fact that he inserted the following clause in said deed of trust, “Reserving, however, his homestead right therein, as secured by the laws of North Carolina,” makes no difference in the right of said Blaney to make said conveyance. This, consi deration of the cas'e involves the much discussed question of the homestead, so much discussed in Thomas v. Fulford, 117 N. C., 667. The Court differed so much in its views at that time — every member of the Court filing a separate opinion, which my friend, Col. Edwards, styled “five dissenting opinions in one case,” that I was in *334hopes it would not return to trouble the Court again, at least while I was a member thereof. But it is here, and I must meet it with the best thought I am able to give it.
Where a question has been “settled,” if a question can become settled, that is, where a question has received for a considerable length of time a uniform construction, it is' often better not to disturb it, even if erroneous. “Stare decisis But this question was not considered settled in Hughes v. Hodges, 102 N. C., 236, which was by a divided Court, and which overruled and construed away many of the former opinions of this Court. It was not considered settled in Vanstory v. Thornton, 112 N. C., 196, which was by a divided Court, and overruled a good portion of Hughes v. Hodges, and many other decisions. It was certainly not settled in Thomas v. Fulford, 117 N. C., 667, which settled nothing, except the rights of the parties to that action, and there has been nothing since Thomas v. Fulford to settle it. I know it is claimed in the opinion of the Court that it is settled by Jenkins v. Bobbitt, 77 N. C., 385, and Williams v. Scott, 122 N. C., 545. But upon an examination of those cases, I am satisfied it will be found they do not do so. It is known to every lawyer who has any practice in bankruptcy, that when the bankrupt claimed his homestead, the Federal Court held that the homestead did not pass to the register by the adjudication, nor to the assignee by his general assignment, and he could not sell it under said assignment. But upon a petition filed in the cause by creditors where the bankrupt was a party, the Court, unless cause was shown to the contrary, would decree a sale of the reversion and appoint a commissioner (who was usually the assignee) to make sale of the reversion, subject to the homestead right under the State law, and to report said sale to Court. This was the kind of sale at which the plaintiff bought, in Williams v. Scott. A sale made under a decree of the Federal Court, to *335which the homesteader was a party, is claimed as a precedent and as settling the case now under consideration. But it does not do so, and has no application to- this case, and our Court has decided the same thing in principle. Minor children are entitled to a homestead, but this Court has held that, in an application to sell real estate for assets by the personal representative, where the minors are properly made parties to such application and make no defence, and a decree of Sale is entered against them, and the land sold, they are estopped from afterwards claiming a homestead.
This brings me to a consideration of the main question — Did the trust deed of Blaney Joyner to Allen Warren convey the estate in the land in controversy, no homestead having ever been laid off or allotted to him or his wife, and his wife not having joined him in the deed ?
It seems to me that if it were not for the many conflicting opinions as to whether it does or not, there would be but little trouble about it. If Article X, section 8, of the Constitution, which says, “Nothing contained in the foregoing sections' of this Article shall operate to prevent the owner of a homestead from disposing of the same by deed, but no deed made by the owner of a homestead shall be valid without the voluntary signature and assent of his wife, signified on her private examination according to law,” I say if this section of the Constitution was now to be construed for the first time, in my opinion it would be held that, in such cases as this', the wife should join in the deed, or it would be invalid. The Constitution says it shall “be void” if she does not sign the deed and is not privately examined. And the trouble arises now from the fact that the Court has undertaken to construe the plain words of the Constitution, which were so plain that they were not susceptible of construction. Until the homestead is laid off and allotted, all the lands the debtor owns are in law his homestead, and are protected from sale by this provi*336sion of the Constitution, which is self-executing. The allot ment is not to create■ the homestead; this is done bj the Constitution ; but to restrict and define its location and boundary, if the homesteader owns more than $1,000 worth of land. But no sale of any part of it can be made by creditors' until this allotment is made. These propositions are so well established that I do not encumber the opinion with a citation of authorities.
No homestead had been laid off here, and until that was done, every part of Blaney Joyner’s land was his homestead, and any deed of his attempting to convey it without his wife’s joining him was, in the language of the Constitution, void. This argument has not and can not, it seems to me, be answered.
But it is attempted to be answered by Saying that, in the deed of trust to Warren, Blaney reserved his homestead right under the Constitution and laws of North Carolina. What were these rights, and where was the homestead? It has never been laid off and located, and if his deed was valid to convey the fee simple estate in the whole tract, as is claimed in the opinion of the Court-, such reservation was void, as it was reserving the right to have a homestead located on Warren’s land. This he could not do.
Section 2, Article X, of the Constitution provides that the “owner” of the land shall select the homestead, when his land is worth more than $1,000; that he shall be a resident of the State and the “owner and occupier” of the land so- allotted to him as a homestead. So, it is seen, if Blaney’s deed to Warren was valid and carried the title to Warren, Blaney had no land out of which he could have a homestead. If the homestead had been laid off and located by metes and bounds, his deed to Warren would have probably conveyed the estate outside the homestead boundary, for the reason that the homestead had been located, and Mrs. Joyner had no homestead in*337terest in the land outside the homestead boundary. See my opinion in Thomas v. Fulford, 117 N. C., 667. If Blarney’s homestead had been laid off and assigned to him before the deed to Warren, and it had contained no reservation, would it be contended that his deed, in which his wife did not join, would have conveyed this allotted homestead ? And if not, how can it be contended that it conveyed the whole tract before the homestead was laid off, when the whole tract was his homestead until it was reduced by assigning him a part of it, less than the whole.
But it is contended in the opinion that, it is settled by the decisions of this Court that the deed from Blaney to Warren was a valid deed, and conveyed the title to- Warren. To this proposition I dissent. The earlier decisions of this Court upon the subject of homestead, made soon after the Constitution of 1868, are full of inaccuracies, as the more recent decisions will show. In the early decisions it will be seen that the homestead was treated as an “estate,” and that part that remained after the determination of the homestead was treated as a remainder. But this doctrine has long since been abandoned. In Bank v. Green (Bynum, J.), exploded this doctrine, and showed that was no estate of any kind, but only a determinable exemption from sale under execution. This was approved in Marcom v. Hicks, 90 N. C., 204, and numerous other cases since, until it has become the settled doctrine in this Court.
This is a very important modification of the law of homestead. Under the doctrine, treating it as an estate with a remainder over, it was logical to hold that the “reversion,” as it was generally called, could be sold under execution or by the homesteader without selling his particular estate, called the homestead; or to sell the fee, subject to his homestead estate, without his wife’s- joining with him in the conveyance, as the homestead estate was not affected by such sale: It was *338then treated as an estate that the homesteader had acquired, distinct from the original estate, and was treated as a new estate, as an estate in dower or curtesy is treated. Under that ruling of the Court it became necessary to pass the Act of 1870, to' prevent the sale of the remainder or “reversion,” as it was generally called. This act to prevent sales of the “reversion” was not brought forward in The Code of 1883, and all acts not brought forward in that compilation were repealed. And creditors commenced to enforce their executions against the “reversions.” But in Markham v. Hicks, 90 N. C., 204, which was after the repeal of the Act of 1870, the Court held that, under the new doctrine, the homestead was not an estate, but only an exemption, and the estate and the homestead -were but one entirety, and the “reversion,” as it was called, could not be sold. And while the Court recognizes that the homestead is not an estate, it seems to me that it fails to recognize the results that follow from this change, in its opinion.
Tt would make but little difference! whether it was called an estate or an exemption, if they were both the; same in all except the name. So it will not be safe to put a decision upon these early decisions without considering the fact that when they were made, the homestead was considered an estate, but is now considered only an exemption, and a part of the entire estate, and can not be sold, although the Act of 1870 has been repealed. Markham v. Hicks, supra.
We are so often influenced by a comparison of cases, which are not analogous to the one under consideration, and when we are, it is likely to lead us into error. So, it will not do to compare the homestead with dower, and reason from the analogy. Dower is an estate given to the wife, and, under the Act of 1867, establishing the common law right of dower in this' State, gives to the wife one-third of all the lands of which the husband wast seized during coverture, while the *339homestead is not an estate, and can only be claimed by the owner of the land. But the opinion of the Court says “the question is settled that the deed to Warren passed the title,” and cites Jenkins v. Bobbitt, 77 N. C., 385; Hinsdale v. Williams, 75 N. C., 430; Murphy v. McNeill, 82 N. C., 221; Castlebury v. Maynard, 95 N. C., 281; Jones v. Britton, 102 N. C., 184; 4 L. R. A., 178; Hughes v. Hodges, 102 N. C., 236; Vanstory v. Thornton, 112 N. C., 196; 34 Am. St. Rep., 483; Thomas v. Fulford, 117 N. C., 667, and Williams v. Scott, 122 N. C., 545. I have already commented on Thomas v. Fulford and Williams v. Scott.
Jenkins v. Bobbitt and Bruce v. Strickland are cases where the marriage took place and the land was bought before the Constitution of 1868, and fell under Sutton v. Askew, 66 N. C., 172. Murphy v. McNeill is put on Jenkins v. Bobbitt.
Jenkins v. Bobbitt is one of the cases most strongly relied on by the Court as settling, the opinion of the Court in this case. But it does not, as I think. It falls under the doctrine of Sutton v. Askew, and anything said in discussing the case outside of that is but obiter. But if it were not, it is clearly distinguishable from this case, as the homestead in that case was laid off before the sale.
In Castlebury v. Maynard, the homestead had been allotted to the plaintiff before the sale, upon his own petition, and the Court held that he could not make a good title to the land without his wife’s joining him in the deed. It is true that the Court held that he could make a good title to that part not included in the homestead. See my opinion in Thomas v. Fulford, supra.
Hughes v. Hodges was by a divided Court, and I do not think it sustains the opinion in this case. And while I can not cite the dissenting opinion of Judge Merrimon in that case, which, in my opinion, was unanswered and is unanswerable, yet I wish specially to call the attention of the profession to it.
*340What Jones v. Britton and Vanstory v. Thornton have to do with the validity of the deed from Blaney to- Warren, I am unable to see. And if these cases do not outweigh reason and authority, I do not think “it is settled” that the deed to Warren conveyed the title to this land to him. Vanstory v Thornton and Jones v. Britton show that the homestead is a condition, and runs with the land, as a sale did not relieve it from judgment liens that had attached while the homsteader was the owner. Whereas, if it had been personal to> the hornesteader when he sold the land, it would have discharged the lien.
The case of Hinsdale v. Williams shows that the Court in that case was treating the homestead as an estate, and that part, after the homestead fell in, as another estate, and the Court then treats it “as at common law,” when there is no such thing as estate or common law in it.
The defendants’ title depends on the title of J. A. E. Joyner, and her title depends on the title of Allen Warren. If Warren’s title was not good, the defendants’ title is not good; and if the deed of Blaney to Warren did not convey the land, it remained in Blaney, and the plaintiffs are entitled to recover. As I do not think the deed from Blaney to Warren conveyed the title, I think there was error.
The foregoing opinion was written as a dissenting opinion to the opinion of the Court as originally written, which held that the deed of Blaney Joyner to Warren conveyed the entire tract, and plaintiffs were not entitled to recover anything!. Since then there has been a modification of the opinion of the Court and another opinion written. And while it does not seem to me that the conclusion arrived at is the logical result of the reasoning employed in the opinion, it is at least conservative, and may tend to quiet titles that otherwise might be disturbed by what I consider the logical deduction therefrom. Therefore, without abandoning the arguments *341contained in my opinion, I now file it as concurring in tlie opinion of Justice Douglas, which, becomes the opinion of the Court.