No homestead was allotted to the defendant in the course of these proceedings, and to the present action he opposes the defence that, without on allotment of his *336exemption, notwithstanding the debts antedated the Constitution, in order that the debts might be satisfied from the excess, if sufficient remained to discharge it, out of the land in exonoration of the homestead, the sale was illegal and the deed did not divest the title.
This construction finds support in the ruling of the Court, though not unanimous, upon the point in the elaborately argued and carefully considered case of McCanless v. Flinchum, 98 N. C., 358.
While it is conceded that under the Constitution of the United States, as construed and applied to the exemption enactment, a debt previously created, and before the State Constitution was adopted, must be paid out of the debtors estate, and the exemption must give way when it cannot be otherwise satisfied out of the debtors property, (Edwards v. Kearzey, 96 U. S., 595,) yet the debtor possesses still the right to retain, exempt from sale, even at the instance of such a creditor, whatever excess there may be in his hands after the disposition of so much as may be needed to discharge the debt, and to have the inquiry made in the mode prescribed by law to have the fact ascertained previous to the sale. Should the sale of the part estimated to be sufficient turn out not to be insufficient, the creditor may then have recourse also to the part assigned as exempt. The Code, § 502, et seq. The debt must be paid at all events, but the method of proceeding, in appropriating the property liable, is a matter of legislative regulation.
Were it an open question, it might admit of doubt, whether this must not be done in all cases by the assessors, as the statute provides, to render valid the enforcement of the process in the Sheriff’s hands, and before he undertakes to sell the real estate, instead of instituting such an inquiry before the jury, in an action to establish title and recover possession of premises thus sold. But it has been held that when the real estate is manifestly deficient, and it shall so appear after-*337wards, such sale will be upheld upon the ground that no harm has come or could come to the debtor by reason of an omission to have a proceeding to ascertain if any homestead could be secured, and therefore it would have been useless and without detriment to the debtor. It is thus held in Miller v. Miller, 89 N. C., 402; Arnold v. Estis, 92 N. C., 162; Lowdermilk v. Corpening, Ib., 333; and other cases to same import.
In Littlejohn v. Egerton, 76 N. C., 468, the homestead had been .set apart, but ineffectually, because not assigned by metes and bounds as prescribed by the statute, and the defendant, claiming under the Sheriff’s deed a full estate in the land, had come into possession, and refused to admit the exemption. The Court, recognizing the right of homestead, but unable to restore possession to the plaintiff, suspended further action in the case until the plaintiffs could, in the regular way, have their exemption ascertained and set apart, giving them leave, on filing a certified copy of the allotment, to move for a writ of possession. The interruption in the progress of the cause grew out of the want of power in the Court to have this done under its direction, and the necessity of pursuing the statutory requirements to secure the full benefits of the constitutional provision.
So, if the parties in this case occupied to each other similar instead of reversed relations it would be safe to pursue the same course, and thus enable the debtor to regain his lost possession in furtherance of his legal right to retain possession until the Sheriff, after causing his homestead to be ascertained and its boundaries fixed, should make sale under his execution. Such is not the case before the Court, but the plaintiff seeks to dispossess the defendant, by virtue of the deed of the Sheriff, who sold, as the record shows, a large body of land to satisfy an inconsiderable debt, disallowing any right of homestead or any proceeding to find out whether *338the value of the land was not sufficient .both to satisfy the debt and leave some portion to the debtor.
It has been repeatedly declared, and after an elaborate and exhaustive examination of the subject in separate opinions settled by a majority of the members of the Court in McCanless v. Flinchum, already cited, that, without regard to the time of origin of the debt, the provisions of the statute for laying off the homestead must be observed, because the debtor has a right to the exemption if the debt can, with costs, be satisfied out of other lands, and to this end the assessors should allot, within the prescribed limits, so much as in their judgment is not needed to pay the judgment, subject, however, to the creditor’s right to have the exempted part sold also, if the other, on such sale, proves insufficient and the debtor fails, in any way, to provide for the unpaid residue.
In the case referred to, Merrimon, J., uses this language: “The Court ought to have instructed the jury to inquire particularly whether or not the land in question was worth more than the debt of the execution creditor and the costs, including the costs of laying off the homestead of the execution debtor, and if they found that it was, then the plaintiff could not recover, because it appeared that the homestead had not been laid off as the law required, and in that case the Sheriff had no sufficient authority to sell the land, and therefore his deed to the plaintiff was void.”
Many witnesses were examined in reference to the value of the lands at the time of the execution sale, to the reception of whose evidence, offered by the plaintiff, the defendant objected. To this exception to the course taken by the Court, we have only to say that it has the sanction of the case from an opinion of which we have already quoted a part.
The force of the objection to the witness Everett, first examined, being allowed to put in an estimate upon the land, based upon the value of other tracts in the neighborhood, is *339not apparent, for we do not see how otherwise, unless upon an actual sale of the lands themselves, any reliable estimate could be arrived at. This must, of course, rest on the valuation given other similar lands, irrespective of the effect of improvements.
The references to Warren v. Makely, 85 N. C., 12; Bruner v. Threadgill, 88 N. C., 361, do not sustain the exception. In the first, an inquiry as to the price brought upon a sale of an adjoining tract some twelve months before, simply made in this form, and with no intimation of further evidence of the similarity of their condition, or of any particulars that enter into an estimate of value, was ruled out.
Similar proof was offered in the other case of the value of a town lot opposite to that whose value was the subject of inquiry, and was rejected as incompetent. Neither goes so far as to deny to a witness the expression of an opinion of the value of certain lands founded upon the general value of other lands near thereto, for this is usually a safe, if not the only guide to the formation of a reliable opinion as to the value of that in controversy.
The issue submitted to the jury are the first three of those passed on at a former trial, omitting the fourth, and which will be found in the case as reported in 95 N. C., 479, which was suggested in the opinion then delivered.
The instructions demanded and declined proceeded upon a misapprehension of the point of inquiry, which is not whether a full homestead of $1,000 could be taken from the land and then enough left to satisfy the judgment,, interest and costs, amounting to $83, but how much would remain for the use of the debtor after the discharge of the execution, for if he could not get the full measure of the exemption, the debtor would still be entitled to what was not required after providing for such paymént. So, the issue was not what is implied in the instruction requested, but would the debtor have any land left after satisfying the debt, and if so, it should have been ascertained and assigned, the neglect to *340have which done before the sale renders the same void, and hence the plaintiff is not the owner. Such is the response of the jury to the question of the plaintiff’s title and right to recover possession.
The refusal to give the second instruction was also proper, for there was evidence to warrant the negative answer returned by the jury.
The charge given is obnoxious to no just complaint of the plaintiff, for it requires him to show that the lands were worth less than $1,000, the maximum allowed for the homestead increased by the debt, interest and costs. It is based upon the erroneous idea that the debtor is only entitled to the exemption when he can get the full measure of the allowable value, while he is entitled to a fractional part of less value, if there be such excess over the demands of the writ, as truly as he would be to the large quantity, if it were sufficient to give him more without interference with the collection of what sum the demand requires. • This, however, was favorable to the plaintiff and injurious only to the defendant. It is equally imperative that the debtor have exempt the excess, whatever it might be, and a part as well as the whole.
There being no suggestions of the defendant’s owning other lands, we understand that there were none other than those mentioned in the case.
The exceptions to the charge is general, pointing out no specific errors committed, and could not be, for this reason, noticed in the appeal. We refer to this case as reported in 95 N. C., 479, and to Miller v. Miller, 89 N. C., 402, in further elucidation.
There is no error, and the judgment is affirmed.
Affirmed.