dissenting: I find myself unable to agree with the majority opinion holding that the judgment debtor has waived his right to the homestead under the facts of this case.
The right of a debtor to the exemption of his homestead from sale under execution or other final process, guaranteed by the Constitution, has been uniformly regarded as one peculiarly entitled to the protection of the court. The loss of the homestead exemption is not favored by the law. 0. J., 931.
It is settled law in this State that a judgment debtor whose land has been sold under a prior mortgage is entitled to a homestead in the surplus over the mortgage debt. Wilson v. Patton, 87 N. C., 318; Leak v. Gay, 107 N. C., 468; Montague v. Bank, 118 N. C., 283; Farris v. Hendricks, 196 N. C., 439.
The only question presented in this case is whether the judgment debtor has lost his right to homestead by waiver or estoppel. The facts as they appear from the record and findings of the judge below do not justify the conclusion that the defendant debtor has waived his constitutional right. The defendant’s land was subject to the two principal liens of a mortgage and a judgment. The mortgage creditor instituted action to foreclose and no defense was interposed either as to the debt or the right to foreclose, and judgment of foreclosure was entered and a commissioner named to sell. At the sale the land .was purchased by G. E. Wootten, who was the owner of the debt secured, and also the assignee and owner of the judgment.
The foreclosure judgment, after adjudging the debt and decreeing sale, provided: “Any clear balance in his (commissioner’s) hands shall be paid over to said K. A. Price. And the effect of this judgment and decision shall be to foreclose the said Price from any further equity or right of redemption in said land. And this cause is retained for such other and further orders as may be proper.”
The order confirming the sale directed the commissioner to execute deed for the land to the purchaser free of all liens and equities, and decreed that the deed should forever estop Price from claiming any title, interest, or equity in said land, and the commissioner was directed to disburse the purchase money “in accordance with terms of prior judgment herein.”
The final report of the commissioner, dated 14 February, 1925, showed a surplus of $6,873 over the mortgage debt, and recited that as there was *714a pending action of “Horney v. Price,” involving an asserted lien on the land, be was authorized to make the proper credit on the Wootten judgment when the “Horney case” was settled. The case of “Horney v. Price” finally resulted in decision that Horney had no specific lien on the land. As Homey’s judgment in that case was subsequent to the "Wootten judgment, it has no further relation to this case, except that reference was made in the appeal entries therein to Price’s claim of homestead in the land.
On 15 July, 1925, defendant Price filed in the cause a written motion for the allotment of his homestead in the surplus proceeds from the sale of his land, and the minute docket of the court contains this entry: “Motion heretofore made and filed -by K. A. Price for allotment of his homestead in the purchase money in the hands of Chas. W. Bagby, commissioner, over and above the amount due for payment of the mortgages, interest, and costs, was called and continued by the court for further hearing.”
After the final decision of “Horney v. Price,” and after the entry of the motion for homestead, the commissioner caused the Wootten judgment to be credited with all proceeds of sale after payment of mortgages, taxes, and credit of $1,000, and entered on the judgment docket the following: “A credit of $1,000 is being withheld pending disposition of motion by defendant Price for homestead.” Thereafter no further entry was made as to the motion for homestead until it was heard at September Term, 1936. The court below found “that from the time of making the motion for homestead until about one year ago the defendant made no further effort to have his homestead allotted, and that at said time he caused the action to be placed on motion docket.”
Upon the facts recited, it was adjudged that K. A. Price was “estopped from claiming his homestead rights”; that he was not entitled to homestead in the surplus, and the judgment thereupon authorized the commissioner to enter an additional credit of $1,000 upon the Wootten judgment. In this I think there was error.
In the last analysis, the facts show that after the sale under foreclosure and while the surplus belonging to the mortgage debtor was still in the hands of the commissioner and unapplied, the judgment debtor filed motion for the allotment of his homestead right therein. This motion was entered on the docket and continued for hearing by the court. The commissioner entered on the judgment docket that the $1,000 fund was.withheld pending the disposition of this motion. There the matter rested. It does not appear whether it was the fault of the plaintiff, defendant, or the court that it was not called for hearing earlier. The creditor suffered nothing by the delay, while the debtor may have lost the income from the fund during that period. Conceding it was the *715movant’s duty to press bis motion, be cannot be beld to bave waived bis right to press it by permitting it to remain undisposed of. His motion was still pending in court and could only bave been disposed of by some judgment or order of tbe court. Hanks v. Utilities Co., 210 N. C., 312. As was said in that case, “No statute of limitation runs against a litigant while bis case is pending in court.”
Tbe fact that defendant Price filed no answer to tbe foreclosure suit and did not appeal from tbe judgment cannot deprive him of bis constitutional right. In order to preserve bis right to homestead tbe debtor is not required to deny tbe obligation or to appeal from tbe judgment declaring tbe debt. Tbe Constitution guarantees to him tbe right to bis homestead and exempts it from sale under execution or other final process. Tbe original judgment only foreclosed bis right of redemption in tbe land, not to bis homestead right in tbe surplus. Tbe balance from proceeds of foreclosure sale was ordered paid over to tbe defendant, and tbe judgment ordered tbe cause retained for further orders.
Tbe confirmation judgment directed tbe disbursement of tbe fund “in accordance with tbe terms of tbe prior (foreclosure) judgment.”
This could not be beld to estop defendant thereafter to claim bis constitutional right while tbe fund was still not fully disbursed and while tbe amount of bis homestead was, and still is, beld pending tbe disposition of bis motion for homestead.
Tbe cases, cited in tbe opinion as authority for bolding it was necessary for tbe defendant Price to bave asserted bis right to homestead by proper averment in tbe answer, do not sustain that rule as applicable to tbe facts in this case. “It is out of tbe facts that tbe law arises.”
In Caudle v. Morris, 160 N. C., 168, tbe suit was to recover land from-defendant Smith, who beld a deed from J. C. L. Harris, commissioner. Tbe plaintiffs claimed under a prior deed to their father, now deceased; Upon verdict for plaintiffs, tbe judgment there recited that tbe recovery of tbe land was subject to tbe homestead of tbe widow of plaintiffs’ father. But in that case there were no debts and no creditors, and therefore tbe homestead right of tbe widow under sec. 5, Art. X, of tbe Constitution did not apply, and it further appeared that tbe widow was a party to tbe proceeding in which Harris was appointed commissioner while tbe plaintiffs were not. There were no pleadings to raise an issue as to tbe widow’s right to a homestead, and tbe insertion in one of tbe issues, “Subject to homestead of A. Y. Emery’s widow,” was beld not sufficient to establish homestead in her.
Tbe facts in tbe instant case are manifestly quite different.
In Simmons v. McCullin, 163 N. C., 409, there was a consent judgment that tbe plaintiff (tbe widow of a man who bad been feloniously slain by tbe defendant) recover of tbe defendant $3,000, and “tbe sheriff *716shall satisfy the same out of the property attached by him in the case of ‘Bradshaw, administrator of Simmons, against defendant McOullin.’ ” It was there held that the homestead had been waived and that the judgment was not void, but at most erroneous and to be corrected on •appeal.
In Wilson v. Taylor, 98 N. C., 275, the facts were that the defendant Taylor requested plaintiff to buy in the land for him at a sale by the sheriff under execution of a judgment by another against Taylor. It was held that plaintiff, for the amount so paid out at the request of the plaintiff, had a lien on the land, and that no question of homestead was raised. The opinion in that case uses this language: . . whether by any act, however fraudulent and misleading, the owner can be estopped from claiming a homestead, except by deed with the consent of the wife, evidenced by her privy examination, as prescribed by Art. X, sec. 8, of the Constitution, it is not necessary for us now1 to consider, and if it were, Edward Taylor, as appears from the evidence and verdict of the jury, having invoked the kindness and friendship of the plaintiff, and procured the purchase of the land for his own benefit, and for which, at his solicitation, the plaintiff had paid the claim of the defendants, does not present a very meritorious consideration. Hinson v. Adrian, 92 N. C., 121.”
In Duplin County v. Harrell, 195 N. C., 445, Harrell’s land was sold under various deeds of trust, resulting in a surplus. This was ordered paid over to a judgment creditor under a judgment docketed in 1923, for the reason that in 1925 Harrell had conveyed the land to Cooper, trustee for O. C. Blanchard, and therefore was not entitled to homestead, having conveyed it. The Court there said: “We think the prior judgment of Parker had priority over the subsequent deed in trust to Cooper, trustee for O. C. Blanchard.”
In Cheek v. Walden, 195 N. C., 752, it was held that a judgment creditor was not permitted to sell the land under execution without allotting the homestead, notwithstanding the subsequent execution of a mortgage on the land by the judgment debtor.
In Farris v. Hendricks, 196 N. C., 439, it was held that the judgment debtor was entitled to homestead in the surplus but not to be paid its present cash value.
In Hinson v. Adrian, 92 N. C., 121, the homestead was allotted in the surplus after sale under mortgage, but not in the land itself.
It seems to me that none of the cases cited is sufficient authority for holding that the defendant, under the facts appearing in this case, has waived his constitutional right to homestead.
On the contrary, it was held in Beavan v. Speed, 74 N. C., 544, and in Howell v. Roberson, 197 N. C., 572, that a debtor -could not waive his homestead by an agreement to that effect contained in the note.
*717And in Abbott v. Cromartie, 72 N. C., 292, where the debtor’s land was sold under execution without allotting homestead, and the debtor leased the land from the purchaser for three years, it was held that this did not constitute a waiver or bar the debtor’s claim to homestead.
In Lambert v. Kinnery, 74 N. C., 348, it was said that the homestead right could be lost or parted with only in the mode prescribed by law.
To the same effect, Littlejohn v. Egerton, 76 N. C., 468; Edwards v. Kearsey, 74 N. C., 241. See, also, Ferguson v. Wright, 113 N. C., 537; Connor and Cheshire, Constitution of North Carolina, pp. 393-394.
There was no estoppel upon defendant either by judgment, by deed, or in pais. There was no evidence of conduct on his part to mislead the creditor, or alter his position. Nor should the defendant be held to have waived a constitutional right by failing to press a motion pending in court as to a fund still held awaiting the disposition of his motion.
CONNOR, J., concurs in dissenting opinion.