The movant, IL A. Price, excepted and assigned error (which we cannot sustain) to certain evidence as to lost records and the controversy in the case of “Homey v. Price.” We think the foundation was properly laid for the evidence as to lost records and the evidence as to the “Horney case” was relevant and material on the question of waiver. We think the only serious question on this record is: Did IL A. Price waive his right to homestead exemption? We think he did.
The homestead exemption is a favorite of the law and the right will be sustained whenever it is possible to do so, but it can be waived and released and thus made ineffective.
It was agreed that the court below might find the facts.
It is well settled that where a jury trial is waived the findings of fact, supported by evidence, by the court are as conclusive on us as if the facts were found by a jury.
In regard to homestead exemptions of movant IL A. Price, the court below found as a fact that at .May Term, 1924, an action had been instituted against IL A. Price to foreclose a certain mortgage given by him. At May Term, 1924, a judgment was rendered against Price. It is found as a fact that “There is no appeal from said judgment; and the defendant Price had filed no answer and had made no demand prior thereto for a homestead in the lands or the proceeds to be derived from a sale thereof.”
A judgment was duly rendered against Price confirming the sale. It is found as a fact: “No appeal was taken by defendant Price from this judgment of confirmation, although it expressly provided that the commissioner’s deed ‘shall forever estop the said IL A. Price from claiming any title, interest, or equity in or to said property by reason of the fact that G. R. Wootten, the owner of the judgment and other liens against the property, became the last and highest bidder, and for any and all other reasons arising prior to the signing of this judgment: “That the commissioner is directed to receive the pur chase, money and to disburse the same in accordance with the terms of the prior judgment herein.” ’ ”
It is further found as a fact that “Thereafter, on 15 July, 1925, the defendant IL A. Price, in the case of ‘P. D. Pence v. IL A. Price, W. W. Burns, and G. R. Wootten,’ made a motion in open court for the allotment of his homestead in the premises or in the proceeds derived from the sale thereof.”
*712This was nearly a year after final confirmation. “That from the time of making the motion for homestead until about one year ago, the defendant K. A. Price made no further effort to have his homestead allotted, and that at said time he caused the action to be placed on the motion docket.” This was some ten years after that K. A. Price made this motion.
In Caudle v. Morris, 160 N. C., 168 (171), is the following: “As contended by the learned counsel for plaintiffs, there is no such claim or plea of homestead set up in the answer of either Bryant Smith or Mollie Morris. It has been uniformly held by the Court that in an action to recover land, if the defendant desires to claim a homest,ead therein he should assert his rights by proper averment in the answer. Wilson v. Taylor, 98 N. C., 276. In the opinion the Court says: No issue in regard to the homestead was raised by the pleadings, and there was no question in relation thereto, as appears from the record, till after the verdict. The issues are raised by the pleadings/ citing Hinson v. Adrian, 92 N. C., 121. The Court further says: ‘In all cases cited by counsel for the defendants, the claim to the homestead was presented by the pleadings.’ This case has been cited and approved in a number of cases given in the annotation edition of our reports, and is directly in point and determinative of this appeal.” Simmons v. McCullin, 163 N. C., 409; Duplin County v. Harrell, 195 N. C., 445; Cheek v. Walden, 195 N. C., 752; Farris v. Hendricks, 196 N. C., 439.
It may be noted that in the action “J. T. Horney v. K. A. Price” is the following: “Counsel at the same time stated that in any further proceedings, either in this cause or any other cause affecting the property in question, the defendant K. A. Price reserves his right at all times to seek the benefit of the Constitution in law for the preservation of his homestead rights in the lands, and defendant objects to the judgment tendered to the court and signed. To this judgment the defendant excepts and appeals to the Supreme Court. Notice given in open court.” This appeal was never perfected.
The judgment in the “Horney case,” entered at the September Term, 1924, recites that it is to be effective from the time of filing of Us pendens therein, 22 March, 1923, and the commissioner states that the question of Dr. Price’s homestead was raised in that case. This was prior to the filing of the present motion on 15 July, 1925.
In Simmons v. McCullin, supra, at p. 414, we find: “A regular judgment against him, disposing of his homestead, would not be void, or even irregular, but at most only erroneous, and to be corrected, if wrong, by appeal. McLeod v. Graham, 132 N. C., 473; Henderson v. Moore, 125 N. C., 383.” N. C. Prac. & Proc. in Civil Cases (McIntosh), sec. 652, pp. 735-6.
*713Under the facts found, supported by competent evidence, we think the movant, K. A. Price, has lost his right to his homestead exemptions.
For the reasons given, the judgment of the court below is
Affirmed.