(dissenting.) The judgment, upon which the execution under which the land was sold and purchased by *341the plaintiff, was for the ¡recovery of a debt antedating the Constitution and laws providing for homestead, and I do not concur in the opinion that the sale was invalid because the Sheriff had not caused the homestead to be allotted, as I understand the decision of the Supreme Court of the United States in Edwards v. Kearsey, 6 Otto, 595, reported in 79 N. C., 664, and the decision of this Court in Gheen v. Summey, 80 N. C., 187; Earle v. Hardie, Ib., 177, and Richardson v. Wicker, 80 N. C., 172, in conformity with that decision and immediately following it.
Art. X, sections 1 and 2 of the present Constitution, and the legislative enactments for carrying that article into effect, are void as to contracts made prior to the adoption of the Constitution, because they violate that provision of the Constitution of the United' States, which declares that, “ no State shall pass any * * * * law impairing the obligation of contracts.”
In Edwards v. Kearsey it is said : “ The obligation of a contract includes everything within its obligatory scope. Among these elements nothing is more important than the means of enforcement. This is the breath of its vital existence. * * * The ideas of right and remedy are inseparable.” It will not do to say that the law affects the remedy and not the rights of the parties to the contract. If the law affecting the remedy impairs the obligation of the contract— lessens the value of the contract — it is void, and “ it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the Constitution.” The italics are as reported.
It is also said in the same case: “ The remedy subsisting in a State where and when a contract is made, and is to be performed, is a part of its obligation, and any subsequent law of the State which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is therefore void.”
*342Following that decision, and referring to it as settling the question, this Court in Gheen v. Summey, supra, said “ The act of 1869, (The Code, § 502, et seq.,) so far then as it pror vides the machinery for laying off and allotting the homestead against debts contracted prior to the 24th of April, 1868, the date of the adoption of the Constitution, is void, but perfectly valid as to all contracts entered into subsequent to that date.” To the same effect was Earle v. Hardin, supra.
Again, referring to Edwards v. Kearsey, in Richardson v. Wicker, 80 N. C., 172, this Court not only said that the exemption “ provided for by the Constitution of 1868 were not allowable against debts previously contracted,” but it was further said in effect that it was the duty of the Sheriff to have made the money on the plaintiff’s execution, and that for his failure to do so the plaintiff could have maintained an action for such damages as he had sustained. In that case the Sheriff had returned the execution without selling defendant’s land, because the plaintiff had not paid nor tendered the fees for laying off the exemption. While it was held that the Legislature might repeal the penalty amercement for failing to sell under the execution, it is said that “there is no doubt he (the plaintiff) could have maintained such action,” that is, for damages.
In these cases it is held that the provisions enacted for carrying into effect Article X of the Constitution in relation to homesteads are void as to contracts' made anterior to their enactment; and I think these authorities, based as they are upon an acquiesence in the decision of the Supreme Court of the United States in Edwards v. Kearsey, in which the constitutionality of the law under which it is insisted that the deed of the Sheriff, in the case now before the Court, i void, was the immediate subject of investigation, should be adhered to.
Wilson v. Patton, 87 N. C., 318; Albright v. Albright, 88 N. C., 238, and Arnold v. Estis, 92 N. C., 162, so far as the *343•questions decided by them are involved, may, I think, be easily distinguished from the case before us, and from the cases cited, and so far from being in conflict, by the clearest implication they are in harmony.
In Wilson v. Patton the land was sold by the Sheriff without laying off the homestead, but there were executions in his hands on old and new debts; there- was more than enough money from the proceeds of the sale to satisfy the execution on the old debt, and the money being in the hands of the Sheriff, he asked instruction of the Court as to the application of it, and it was held that after applying enough of the proceeds to satisfy the Old debts, the defendant (who made no question as to them) was entitled to an interest in any remainder not exceeding the value of his homestead. As against the executions on the old debts no question was raised as to the right of the Sheriff to sell without laying off the homestead, and the validity of the sale 'was not questioned.
In Albright v. Albright, there were executions on old debts and new debts, and besides, there was a mortgage, and at the instance of the debtor (who made no question as to the old debts, and who did not ask for any allotment of the homestead) the Court was asked to restrain the Sheriff from selling till conflicting rights and priorities of creditors could be settled, so that the land could be sold to the greatest advantage, and “free from all clouds.” It was not even claimed as against the old debts that the Sheriff should first lay off the homestead, and certainly not at the expense of any execution creditor on an old debt.
In Arnold v. Estis, the execution creditor was the purchaser. The judgment was on old and new debts, blended, and the land was sold by the Sheriff without having'the homestead allotted. It was held that the sale was void, and it was put upon the ground that it was the fault of the purchaser in blending the old and new debts and selling under both; and *344the Chi-ee Justice, quoting Mebane v. Layton, 89 N. C., 396, said: “ A sale without laying off the homestead, unless in case of the several exceptions mentioned above, is unlawful and void.” One of the “ several exceptions” alluded to was on an old debt; and is not the inference irresistable that a sale under an execution on an old debt would not be “ unlawful and void ?” What other possible inference could be drawn ?
In Miller v. Miller, the sale was made by the Sheriff without allotting the homestead, and the sale was held to be void; and though the reasoning in that case was in conflict with the authorities cited, the decision was not.
I think it is conceded that the execution on an old debt must be satisfied, at all events, before the debtor is entitled to a homestead, and that the execution creditor is not bound by the valuation that may be placed upon the debtor’s land by the assessors or appraisers, and if the excess, when sold, does not bring his debt, then he may sell the homestead which has been allotted; and if so, why require the creditor to do the vain thing of paying the cost of an allotment in which he has no interest whatever, and by which he is not bound ?
It is admitted that if the debtor’s property is sufficient to pay the debt, it must be paid at all events, homestead or no homestead. In fact, it would seem that no one would be bound by such an allotment, for, as in the case of McCanless v. Flinchum, the execution debtor made no claim to the homestead. He had sold (whether fraudulently or not) what interest he had in the land, and was bound by that sale. The alleged fraudulent vendee, who claimed the land, clearly was not bound by it, for he claimed title, under the debtor’s deed, adverse to everybody; and if his purchase was not fraudulent, then his title was good against everybody; if it was fraudulent, then it was not good against the execution creditor ; so the creditor in whose favor there is a judgment and an execution on an old debt is driven (not at the instance of *345the execution debtor or any one else claiming title or interest in the land) to the expense of having a homestead allotted, which allotment, when made, is binding on no one claiming title to the land. If this is not such a change in and obstruction to his remedy, as it existed prior to the change, as impairs the value of his contract, I am at a loss to conceive what change in the remedy could do so.
But it may be asked, if a debtor has $10,000 worth of land, must it be sold without allotting the homestead, because the creditor has an old debt judgment and execution? My answer is, the debt being an old one, it is a matter with which the creditor has nothing to do. It is the duty of the Sheriff, if the defendant in the execution has property not exempt by the law, as it was prior to April, 1868, to sell enough of it to satisfy the execution; and, in doing so, it is his further duty to sell to the best advantage he can, and if the debtor has more than enough to satisfy the execution he may, without expense to anybody, designate what property shall be sold, and the Sheriff would not be justified now, any more than he would have been before 1868, in selling unlawfully $10,000 worth of land to satisfy an execution of $100.
As has been said, it is the duty of the Sheriff to sell to the best advantage. He sells only the interest of the defendant, and if by his own denial of the Sheriff’s right to sell, or by any obstructive act of his own, his interest brings at public sale only a small portion of .its worth, the purchaser gets it and it is the debtor’s own folly. The only valuation by which the execution creditor is bound (the debt being any one of the excepted classes) is that of the highest bidder; and I think Littlejohn v Egerton, and like cases, decided by this Court in regard to old debts were, with Edwards v. Kearsey, overruled by the ultimate decision in the last named case. How far the Legislature may control or change the remedy, without violating the Constitution, has been the subject of much discussion in the Courts of the States and of the *346United States. There is an able and elaborate discussion of the question by Chief Justice Taylor in Jones v. Crittenden, 1 C. L. Rep., 385, in which the stay-law, passed in 1812, was declared unconstitutional and void as impairing the obligation of contracts, and similar decisions have since been made in Barnes v. Barnes, 8 Jones, 366, and in Jacobs v. Smallwood, 63 N. C., 112.
I think, as a result of the discussion, it has been settled that the Legislature has the power to alter the law respecting the remedy or to abolish one tribunal and substitute another, provided there is an efficient remedy left or substituted, and one that will not impair or lessen the value of contracts.
Stay-laws have been declared unconstitutional as to antecedent contracts, as impairing their obligation, and though it has been said, and truly said, by Justice Merrimon, in McCanless v. Flinchum, that “ the law favors the homestead,” yet the decision of the Supreme Court of the United States in Edwards v. Kearsey, and the authorities there cited,seem to me conclusive that, under the Constitution of the United States, it cannot confer that “ favor ” at the expense of a creditor whose debt antedates the homestead law..
It is with much diffidence that I dissent from the opinion of a majority of the Court in a matter fully discussed and carefully considered, but I am unable to take the same view of the Constitution, and of the force and effect of the ruling of the Supreme Court of the United States in Edwards v. Kearsey, as that which has impressed them, and I have felt it my duty to express my non-concurrence, and, as briefly as I could, my reasons therefor.