STERN v. LEE

BURWELL, J.

"Land held in remainder dependent upon a life estate in another is not susceptible of that immediate occupancy which is contemplated by law in order to constitute a homestead." Murchison v. Plyler, 87 N.C. 79. Hence, while the estate of the judgment debtor Lee in the land mentioned in the pleadings was only an estate in remainder after the life estate of Mrs. Sarah Frances Bond, his interest in the land was subject to sale under execution. The docketing of plaintiffs' judgments, under the provisions of our statutes, gave them a lien on the estate of their debtor in this land, and the Constitution and the laws, as interpreted by this Court in the case cited above, did not protect that estate from sale, though it was all the realty owned by the debtor and was worth less than one thousand dollars.

But the plaintiffs did not see fit to exercise this right to sell their debtor's estate in remainder, and, by a determination of the particular estate, his right to the land has become such as clearly to entitle him to claim homestead privileges and immunities therein. Plaintiffs' liens are not at all displaced or affected by the change of the debtor's title. Their enforcement is postponed, however, because in lieu of that estate in remainder, which was not protected from sale, there has come to the debtor an estate which, by force of the provisions of the Constitution, brought to him a "homestead" in this land.

Being thus entitled to "a homestead" in all the land (it being (429) worth less than one thousand dollars and all that he owned), he conveyed it to another in fee. He could not by that act deprive the plaintiffs of any of their rights, or change or in any degree affect them. The limit of the effect of that deed is the line which marks the beginning of plaintiffs' rights under the law. The plaintiffs have liens on the land by virtue of their docketed judgments; the debtor's deed cannot annul or change those liens. The plaintiffs have a right to enforce their liens at the time and in the manner prescribed by law; the debtor's deed cannot for an instant postpone that enforcement. The effect given to the properly executed deed of the "homesteader" and his wife conveying the homestead land, by the decisions of this Court, does not at all interfere with or affect the rights of judgment creditors. By the law they are given a lien. Their lien continues in force notwithstanding the debtor's conveyance, unimpaired. By the law the enforcement of their liens by sale is postponed until the determination of the "homestead" right. That postponement is not extended by the debtor's conveyance of the land.

It seems clear, therefore, that the judgment creditors of "homesteaders" have no good cause to complain of the effect allowed to the homesteader's deed, as fixed by the case of Adrian v. Shaw, 82 N.C. 474, and the long line of cases of like import. They are left in exactly the plight they were in when the deed was made. On the contrary, the "homesteader" would have, we think, good cause of complaint if it was held that a conveyance by him subjected the land to immediate sale under executions issued on docketed judgments. For, in that event, as is most forcibly pointed out in Simpson v. Houston, 97 N.C. 344, the homestead would be in effect unalienable, and, being unalienable, the homestead would become under some circumstances a prison rather than a home. Thompson Homestead and Ex., sec. 399.

In many States where homesteads are secured by law to (430) residents, and where docketed judgments are liens on the judgment debtor's land, an exception as to such liens is made as to homestead lands. On the homestead lands, while occupied as such, no lien attaches, and the homesteader, though he is also a judgment debtor, can make a good title to the homestead land. His conveyance, if made while holding the homestead, is good against the docketed judgments.

In this State it is settled, nemine dissentiente, that a docketed judgment creates a lien on the homestead land. That being fixed, the courts here were driven to the conclusion either that the "homestead" was, in effect, not alienable, or that the rule announced in Adrian v. Shaw, supra, was the law of this Commonwealth. Under that rule, those who acquired by proper deed the "homesteader's" title to the land have the right to assert every right to the land that is not inconsistent with or injurious to the rights of the lienors, the judgment creditors.

What the rights of the homesteaders' vendees are will be disclosed by an ascertainment of the rights of the plaintiff judgment creditors. The rights of the latter are paramount, and should not be encroached upon. What are they? To have the homestead land sold to satisfy their debts just as soon as the "quality of exemption from sale under execution," as it has been called, passes from the land; just as soon as the land could have been sold to satisfy the judgments, had no conveyance been made, and no sooner. When does that quality of exemption from sale under execution cease? It seems to be conceded by plaintiffs' counsel that that quality, according to the decisions of this Court, followed the land in the hands of the purchaser from the homesteader, and continued till his death. But it is insisted that it ceased at his demise. We do not accede to that proposition. The Constitution, Art. X, sec. 3, expressly provides that "The homestead, after the death of the owner thereof, shall be exempt from the payment of any debt during the minority of (431) his children or any one of them." The duration of this quaility [quality] of exemption from sale under execution is thus plainly extended beyond the life of the homesteader. Had he not sold the homestead land, the plaintiffs could not have sold it to satisfy their judgments until all his children had arrived at full age. We do not subtract anything from their rights when we decide (as we think the former decisions of this Court, running through a long series of years and establishing a rule under which many have acquired rights to property, require us to do) that the purchasers of the homestead land from the homesteader and his wife acquired the right to hold the land against judgment creditors, not only for the life of the homesteader, but also "during the minority of his children or any one of them." In a very recent case ( Ladd v. Byrd, 113 N.C. 466) it was decided that where, in an action to recover possession of land, a homestead right is shown to have existed, the burden is on the plaintiff (claiming to own the "reversion" after the expiration of that right) to show not only the death of the homesteader, but also the arrival at full age of his youngest child. That case seems decisive of this one.

In Rogers v. Kimsey, 101 N.C. 559, there was a contest, as there is here, between judgment creditors and the vendee of the deceased judgment debtor. One question in that appeal was: When did the homestead right terminate so as to allow the creditor to have a sale of the aliened land? Chief Justice Smith there said that "the right to such homestead terminates at his death without wife or infant children, and hence if a lien has been acquired it may now be enforced." This language clearly implies that if he had left infant children it would not have terminated at his death, and so that case is also decisive of this one.

In Fleming v. Graham, 110 N.C. 374, the Justice who delivered the opinion, combatting the rule established by Adrian v. Shaw, (432) supra, uses this language: "If this were law, upon the termination of the homestead right by the death of such debtor, and the arrival of his youngest child of age, numerous one-thousand-dollar tracts of land would be for sale, which he had kept till then exempt from his creditors." The words we have italicised in the above quotation seem to indicate an opinion that the homestead right did not terminate till the youngest child of the "homesteader" became of age.

No error.