The opinion
MacRae, J.
(dissenting): I do not think that any question of homestead arises upon this appeal. In September, 1883, the first judgment was taken and docketed against D. M. Lee, and in May, 1884, the other two judgments were docketed against him, and from the docketing of these judgments the lien attached upon his estate in remainder. The Code, §435; Mannix v. Ihrie, 76 N. C., 299 .
It is perfectly clear that during the widowhood of Sarah F. Bond, the remainderman D. M. Lee had no estate in the land which could be set off by metes and bounds, or that was susceptible of present occupancy. It has been so expressly held in Murchison v. Plyler, 87 N. C., 79 , where, under the same circumstances, the tenant in remainder, without the joinder of his wife, mortgaged the land ; the Court held that not being subject to a homestead in favor of Murchison, the joining of his wife was unnecessary, that his power to convey was without limit. “And if he should exert this power, either absolutely or conditionally, by a sale of his estate and interest in the land while thus untouched by the right of exemption, it can never again be made subject to that right by anything that may thereafter occur.”
When D. M. Lee, in 1888, married Sarah F. Bond, the particular estate determined, and he became owner in fee of the land, and upon his interest the lien of the docketed judgments had already attached when there was no right of *433 homestead exemption. This lien could not be divested by the falling in of the particular estate It is like the case of McKethan v. Terry, 64 N. C., 25 , where tbe lien having been acquired in 1867 by a levy, it was held to be a vested right which could not be divested by the homestead provision of the Constitution. If there was no homestead exemption, the lien of the docketed judgment was lost at the expiration of ten years. So the first judgment lost its lien in September, 1893, and the others in May, 1894, and the plaintiff is not entitled to the relief demanded. Whitehead v. Latham, 83 N. C., 232 .