concurring. As the “homestead interest” is involved in this ease, and the numerous decisions of our Court concerning it having failed to reach any settled construction, it seems to me that it will be best to disregard what has been so successfully unsettled and blaze out a new line, run by a construction of the Constitution as it is written, without reference to the rules governing estates at common law.
The following part of Article X of the Constitution defines what the homestead, as ordained by it, shall be: “Every homestead and the dwellings and buildings used therewith, not exceeding in value one thousand dollars, to be selected by the owner thereof, or, in lieu thereof, at the option of the owner, any lot in a city, town or village, with the dwellings and buildings used thereon, owned and occupied by any resident of this State, and not exceeding the value of one thousand dollars, shall be exempt from sale under execution or other final process obtained on any debt.” * * * Sec. 2.
“'The homestead, after the death of the owner, shall be exempt from the payment of any debt during the minority of his children, or any one of them.” Sec. 3.
“If the owner of a homestead die, leaving a widow, but no children, the same shall be exempt from the debts of her husband, and the rents and profits thereof shall enure to her benefit during her widowhood, unless she be the owner of a homestead in her own right.” Sec. 5.
“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 the wife, signified on her private examination according to law.” Sec. 8.
*342Prior to the adoption of our present Constitution (1868), a judgment creditor bad the right to have sold under execution all of the debtor’s land, leaving him without home or shelter for himself and family. To prevent such homelessness, the Sections above quoted were ordained and incorporated into our organic lav/, and we now have to construe their meaning in deciding the questions presented in this appeal.
We do not understand that the purpose of creating the homestead was to prevent the creditor from collecting his judgment out of the homestead, but simply to> postpone the time of doing so — thus giving the homesteader a chance to provide a living for himself and family, if he should have one, and an opportunity to make the money to pay the debt. The docketed judgment by statute creates a lien upon it, which remains until the time limit of the exemption expires.
The word “homestead,” in its general significance, as defined by Webster, means “the home place” ; “a home and the enclosure or ground immediately connected with it”; “the home or seat of a family.” Its existence so defined is general, and is not confined or limited to any class or condition of people. But as defined by our Constitution, it is limited to that class of owners who are involved in debt; so badly involved that it would require a sale of substantially all their property to pay their debts. For this class, the “homestead” of one thousand dollars worth of real estate is created by our Constitution. If provided for any other class, why exempt it “from sale under execution or other final process obtained on any debt” ? Art. X, Sec. 2. “Shall be exempt from the payment of any debt during the minority of his children or any one of them,” Sec. 3; “the same shall be exempt from the debts of her husband,” Sec. 5. Its association and use are inseparably connected with exemption from sale for the payment of debt. Therefore, it must necessarily follow that if there be no> debt for which the owner of a homestead is liable, *343there can be no “homestead” as defined, and created by our Constitution. But, as soon as the debt or liability to pay is created, this exemption from the payment of the same out of the land designated and of the prescribed value, called the “homestead,” springs into existence and action, and stays the hands of the selling power.
By “owner,” as used therein, is meant he who holds the freehold estate in the land, whether of inheritance or not of inheritance, whether the legal or the equitable estate.
As to such homestead, as is so defined, no sale can be ordered or made by statute to enforce the collection of any debt diie by the owner during the time limited in the Constitution. If the owner be tenant for life, his estate in the land dies with him. If he be tenant in fee, it descends to his heirs at law or devisees, but the hand to sell is stayed until the contingencies provided in sections 3 and 5 happen, and then the right of sale begins, and not before. During the, stay of sale, the judgment lien remains upon the title which is vested in the judgment debtor; but the judgment debtor’s title remains in him just as it did before the judgment lieu attached. If he owned a fee simple estate, it continued to be a fee simple, simply incumbered with the lien and nothing more. Under our statute, a docketed judgment becomes a lien upon all of the “owner’s” (debtor’s) land; the excess of a thousand dollars' worth may be sold under execution issued upon it, whereby the title of the “owner,” as to that, is di-vaste! from him and transferred to another, and he loses all estate and interest in it. But, as to that part exempt from sale, the “homestead,” the title remains' vested in the “owner,” incumbered, it is true, with the judgment lien, nothing more. The “homestead,” or “right of homestead,” creates no estate in the owner; the estate is created by the title under which he acquired and holds the land, and in no other way. No remainder is created by the stay of sale, because no estate, “par*344ticular or otherwise, pass'es out of the owner or is carved out of the fee. No tille passes from the owner by or on account of the homestead, but it remains in him; therefore, there can be no reversion — there was no title out of him to revert. The entire fee remains in him. Should the owner pay off the judgment, the lien would vanish and there Would be no particular estate to fall in, or outstanding title which could come back; so the estate and title would remain just as before in the tenant in fee, the owner or homesteader. Upon the death of the owner or tenant in fee, the title to the land descends to his heirs, carrying with it the right of entry and possession without a change of title — only encumbered with tire lien, which the heir could extinguish by paying the judgment, or he could refuse to pay and allow the fee to be sold and the excess of the proceeds of sale, after discharging the lien, to be paid over to the personal representative or heir, according to law in such cases.
Without debt there can. be no “homestead,” as defined by the Constitution. When the owner creates his debt, the Constitution creates his homestead; when the owner extinguishes his debt, the Constitution extinguishes his homestead. They are constitutional inseparable companions. If there be no debt, there is no homestead or homestead right. Therefore, a deed executed by the husband who owes no debt (the wife not joining in the deed) conveys the land free from homestead, but subject to the dower right; but if he be in debt, the deed is invalid (section 8) as to so much of the real estate designated as is worth one thousand dollars, but is valid (subject to dower right) as to the excess, whether the homestead has been laid off or not, for it (the $1,000 worth) becomes definite and certain when the homestead becomes definite and certain, that is, when the homestead is, or may be, laid off and allotted or assigned. The laying off and assignment of the homestead is not essential to create it. It is created and *345defined by the Constitution (section 2), and any resident of this State is entitled to have at all times as much as one thousand dollars worth o-f his real estate (as therein designated) exempt from sale, and no more, at any time. Should the land assigned increase in value beyond the value limited, the excess could be sold and the proceeds applied to the judgment debt. Should it decrease in value, the deficiency could be claimed in any land or town or city property afterwards acquired by him. The identity of the thousand dollars worth can he certain by laying it off; so, whether laid off or not is immaterial. Id certum est quod cerium reddi potest.
At the time Blaney conveyed the land to Warren, he was in debt and made the deed of trust to secure his debts, but he did not intend to convey his homestead (one thousand dollars worth of it) ; but conveyed the land “subject to and reserving his homestead rights therein as secured hy the laws of North Carolina,” in which deed his wife did not join. His “homestead rights” being the right to own one thousand dollars worth of the land in fee or for life, subject to any lien for debt, by reserving the “homestead rights,” he reserved his title in fee to that much of the land. By his deed, title passed to all of the land in excess of one thousand dollars worth, but did not pass to one thousand dollar’s worth thereof, which could at any time have been made certain and definite by laying off the same in conformity with section 2, Article X. So, not having conveyed his “homestead,” the sale was not invalidated under section 8, Article X, and the title to that much of the land remained in him, and upon his death descended to his heirs at law. The sale by Warren, trustee, conveyed to Davis, the purchaser, the excess of one thousand dollars worth thereof; the title to which passed' to J. A. E. Joyner by the conveyance of Davis to her under the parol trust under which Davis bought. So it is clear to me that plaintiffs, heirs at law of Blaney Joyner, are entitled to re*346cover so mucli of tkat tract of land, including the dwellings and buildings used therewith, as will not exceed in value one thousand dollars, to> be selected by them, the present owners thereof.