The opinion
MerrimoN, J.
(dissenting). I cannot concur in so much ■of the opinion of the Court in this case as declares and decides that a resident of this State, having a'wife, and land in which he has a homestead, can make a valid sale and ■conveyance thereof, not subject to but divested of the right of homestead therein, “without the voluntaiy signature and assent of his wife, signified on her private examination according to law,” if such sale and conveyance -shall be' made before the homestead shall be valued and laid off as prescribed by the statute; nor in the interpretation given of numerous decisions of this Court cited in the course of the opinion, some of which 1 will advert to presently.
The Constitution (Art. X, §§2, <3, 5, 8) provides as follows: “Every homestead, and the dwellings and buildings used therewith, not exceeding in value one thousand dollars, to be selected by the owner thereof, or, in lieu thereof, at the ■option of the owner, any lot in a city, town or village, with the dwelling and buildings used thereon, owned and occupied by any resident of this State, and not exceeding the value of one thousand dollars, shall be exempt from sale under execution or other final process obtained on any debt. But no property shall be exempt from sale for taxes or for payment of obligations contracted for the purchase of said *253 premises. The homestead, after the death of the owner thereof, shall be exempt from the payment of any debt during the minority of his children, or any one of them. If the owner of a homestead die, leaving a widow, hut no children, the same shall be exempt from the debts of her husband, and the rents and profits thereof shall inure to her benefit, during her widowhood, unless she be the owner of a homestead in her own right. Nothing contained in the foregoing sections of this article shall operate to prevent the owner of a homestead from disposing of the same by deed;, but no deed made by the owner of the homestead shall be valid without the voluntary signature and assent of his wife, signified on hei private examination according to law.”
Thus, the homestead exempt from such sale for the time specified, is created, defined with particularity and much in detail, and is given and secured to • every resident in this State, if he shall have a homestead. Nothing is left to statutory regulation, except to prescribe how it shall be valued and laid off..
Unquestionably, the makers of the Constitution had the power and authority to make such an organic provision, and they were the judges of the propriety and expediency of it. It seems to me that the plain purpose and effect of it was to create and give directly to every resident of this State the right to have his homestead — the place where he lives or might select to live — in the measure and way and for the time prescribed, “ exempt from sale under execution or other final process obtained on any debt,” and that such right attaches to any land he may have as homestead, when and as soon as he has the same, and, having attached to the land, it-remains and runs with it, and the latter cannot be divested of it while the owner continues to be a resident of this State, until the wife, if there be one, shall-give her assent to a conveyance of it to some person, by the owner thereof, in the way prescribed. It is not contemplated or intended that. *254 such right shall arise and spring into active operation, and have force and effect only when the owner of the homestead shall be in debt, or when there shall be docketed judgments against him, or when executions shall be going against his real property, but it arises presently out of and continues to exist and run with the land, as indicated per force of the Constitution, whether the owner is in debt or not, ready at all times to serve, and at all times serving, the beneficent purpose of preventing the sale of the homestead, as defined, under such legal process as that mentioned, whenever and however the occasion for such active prevention may arise or come about. The right of exemption ever accompanies and attaches to the homestead as defined by the Constitution, and the title of the owner to it can pass, when he has a wife, only with her assent signified in the way prescribed.
It is not true that the homestead right is operative and beneficial only when the owner is in debt, or pressed by “ final process, obtained on any debt.” It is ever operative; the owner, though he might owe nothing, and be possessed of great wealth, has it; his wife and children have the benefit of it, and he could divest himself of it onty with the assent of his wife. He might have it valued and laid off to him, at any time, though ordinarily he wrould not do so. The statute (The Code, §511), so expressly provides.
A leading and important feature of the purpose is, when the husband lias a wife, to secure the benefit of the homestead to her and the children of the marriage against the possible reckless trading adventures, improvidence and dis-sipations of the husband. It is not intended that he shall have power as to the homestead, to deprive his wife and children of a home. Justice and sound public policy forbid that he shall have unrestricted power to do so. lienee, the broad and strong provision, that “no deed made by the owner of the homestead shall be valid without the voluntary signature and assent of his wife, signified on her private examination according to law.”
*255 While the wife lives the husband can make no valid sale of the homestead without her assent so given; and it makes no difference whether the homestead has been valued and laid off or not, as provided by the statute, because the homestead exemption from such sale is given by the Constitution and not by the statute. The latter is only in aid of the former, and its purpose is simply to locate and ascertain where the homestead is, its value ;>nd boundaries. The limitation upon the husband’s power to sell it without the wife’s assent is very broad and comprehensive. The words employed are, “no deed made,” &c., implying no sale of it shall be valid without her assent. There is nothing in the Constitution, nor in the statute, that, in terms or by the remotest implication, gives the husband power to sell it without the wife’s assent before it is valued and laid off to him; but there are there words of inhibition and limitation upon his power, strong and broad as they can be It is not provided particularly that he may sell it before or after it is valued and laid off, without her consent, but that he shall not sell it at all without her consent.
In view of the important purpose to be subserved by such limitation upon the husband’s power of sale, can any good and Substantial reason be assigned why he should be, by implication, allowed to sell it without the wife’s assent before it shall be valued and laid off? I can conceive of none whatever; but I can readily suggest grave ones why he should not be allowed to do so. He may not be embarrassed and his homestead imperiled by docketed judgments and executions — he may be free from debt, but he may be a reckless, adventurous trader; he may be improvident and hazard his home on a single transaction; he may be dissipated, drunken, a desperate gamester, and turn his wife and children out of doors, homeless, upon the turn of a die or the result of a game of cards. This he might, could, accomplish if he could sell and convey the homestead without the wife’s assent. He might wilfully *256 refuse to have his homestead valued and laid off to him, to-the end he might sell it, untrammeled by the wife. Such a man would have a motive more or less controlling, impelling him to refuse to do so. The very purpose of the limitation is to cut off, as far as practicable, such possibilities — to protect the wife and children against such husbands and fathers; and they may, would, often need such protection as certainly before as after the homestead shall be valued and laid off.
It is a serious mistake to conclude that the homestead provision is intended simply to protect the debtor and his family against the creditor — it as certainly intends further to protect the wife and children against the shortcomings of the reckless, unworthy husband and father. The second section of the article of the Constitution recited, creates, defines and gives the right of homestead, and protection as to it, against the creditor; the eighth section thereof affords protection against the husband in the restriction upon his power of alienation of it. This section is certainly intended to serve this purpose; otherwise, it is meaningless and nugatory. And such protection is intended to be incident to, and continuous with, the homestead as long as it lasts, if there be a wife and children of the owner of it.
It is said that the homestead provision is a restriction upon, and embarrassing to, the freedom of trade and the transfer of real property, and so it is, to some extent; but the end to be secured by it is one of great moment to the Commonwealth, society and families. It is of niuch consequence that families — wives and children — shall have homes — homes that they cannot be ejected from by the creditor of the husband and father, and that the recreant and faithless father cannot drive them from. This is quite as important as trade, and the people did wisely when they so provided in their organic law. A constitutional provision, so beneficent in its spirit, is not to be so stridly construed in the interests of *257 trade as to impair and destroy, in great part, its efficiency. The law favors the freedom of trade, but it as well and as certainly favors the right of homestead, and there exists not the slightest reason of policy why plain words and phrases should receive strained and unnatural interpretation to the prejudice or abridgment of that right. Besides, as I have, said, the makers of the Constitution had the power and authority to make such organic provision, and it is not to be impaired by interpretation founded in reasons of supposed policy.
The restriction upon the husband’s power of alienation of the homestead in favor of the wife and children is no more objectionable than that upon his power to alien his land in favor of his wife as to her right of dower therein. He cannot sell and convey his lands free from the wife’s right of dower, unless she shall join in the conveyance. No more can he sell and convey the right of homestead without her consent.
The conditions of society require such restrictions upon the hurry of trade; they are essential to its good and the common good. It is said the restriction upon the husband’s power of alienation of the homestead, before it is valued and laid off to him, will give rise to confusion and inconvenience, and the inquiry is propounded, suppose the husband should in such ease sell his lands in parcels, without his wife’s assent, to numerous persons, in -which parcel would the homestead be located? The answer is not difficult. The husband shall not sell the homestead, or any land subject h> it, without the assent of the wife. Whoever buys without it does so at his peril, and he takes subject to the right of homestead, to be asserted freely upon any part of or all the land, just as the purchaser of the land of the husband would take it subject to the right of the wife to dower therein, if she failed to join in the conveyance thereof, and she would *258 take her dower therein, if she should survive her husband, just as if no sale of the land had been made by the husband in his life time. Such objection seems to me to be without force. Surely it has not such weight. as to warrant the strained construction the Court puts upon the limitation .upon the husband’s power in question.
It seems to me that what I have thus said is reasonable and just. It is fully sustained by a multitude of decisions of this Court, made in the course of the last twenty years, and I will now advert to some of them.
In Lambert v. Kinnery, 74 N. C., 348 , the defendant was a resident of this State, and had land — that then in question— which was all he had, and which was sold by the Sheriff under execution, but he failed to have the homestead of the defendant, at or before the time of sale, valued and laid off to him. Hence, the plaintiff, the purchaser at the sale, contended that the defendant had no homestead, that none had been allotted to him, and his remedy was against the Sheriff. But the Court held otherwise — that he had a homestead, saying that “this allotment of a homestead by the Sheriff was not required in order to vest the title to it in the owner, for that is done by the Constitution, but for the purpose of ascertaining if there was any excess, which only was the subject of levy and sale. * * * The defendant, having a vested estate in the homestead, conferred by the Constitution, can lose or part with it only in the mode prescribed by law, to-wit, by deed, with the consent of the wife, evidenced by her privy examination.” The Court held in that case, that the defendant therein had his homestead exempt from sale under final process, although it had not been valued and laid off by virtue and per force of the Constitution, and hence he could not sell and convey it without the assent of the wife.
In Beavan v. Speed, 74 N. C,, 544, the owner of the homestead had stipulated in a promissory note that he waived “the benefit of the homestead,” &c. The Court said : “It is *259 clear that the owner of a homestead is not the only object of solicitude and care in our fundamental law, but the wife, if there be one, and children, if there be any, have rights in the homestead, fixed by the Constitution, which cannot be divested, save in the manner prescribed by that instrument, to-wit: by the deed of the owner, accompanied by the voluntary signature and assent of his wife, signified on her private examination, according to law. * * * This is justly considered one of the most beneficent provisions of the Constitution. But the construction contended for by the plaintiff, if adopted, would entirely defeat it, and would enable a thriftless husband, by a dash of a pen, to turn his wife and children out of house and home.”
In Abbott v. Cromartie, 72 N. C., 292 , the Court held, that “the defendant owned the legal estate in the land, and the Constitution confers no new estate upon him, but only confirms an existing one, to the extent therein expressed, and restricts his powers of alienation, and to charge it with his debts. Having, then, the estate in the land exempt from execution, he can part with it only by the formalities prescribed by law.”
In Littlejohn v. Egerton, 76 N. C., 468 , the Court said: “ The Constitution, Art. N, § 8, permits a husband to dispose of his homestead by deed, provided the wife signs the deed, and is privily examined according to law*. So the idea of an estop-pel by matter in pais is out of the question.” This was material in support of the decision of the Court.
In Bank v. Green, 78 N. C., 247 , the Court said: “The homestead is not the creation of any new estate, vesting in the owner new rights of property. His dominion and power of disposition over it are precisely the same after, as before, the assignment of homestead.” The wife must, therefore, join in the deed of conveyance of the same to make it effectual.
In Murphy v. McNeill, 82 N. C., 221 , the Chief Justice said: “ The land having been acquired since the adoption of the *260 Constitution (1868), and the enactment of the law to carry into effect its provisions, for a limited exemption of the debt- or’s property, is subject to the homestead, and the deed made without the wife’s assent is inoperative to defeat the right thereto.”
In Jenkins v. Bobbitt, 77 N. C., 385 , it is held that “the husband’s deed, without the wife’s concurrence, is effectual in passing what is called his estate' in reversion, or, in other words, the land itself, subject to the burden or incumbrance of the homestead as defined in the Constitution, and that the title to this can only be divested in the mode therein pointed out. Lambert v. Kinnery, 74 N. C., 348; Beavan v. Speed, ibid., 544.
“ The right to the homestead exists by virtue of positive law, and laying it off by metes and bounds is only necessary in ascertaining if there be any, and the extent of the excess, which may be appropriated to the demands of creditors. It follows, therefore, that while the plaintiff cannot deprive the defendant of the possession of the land, he is entitled to a decree of foreclosure and sale of the land charged with the homestead incumbrance.”
This case is directly in the face of what is decided in the present case, and expressly decides that a sale of the homestead, not valued and laid off, is void without the assent of the wife.
In Adrian v. Shaw, 82 N. C., 474 , the-Court said: “The homestead is a right defined and secured by the Constitution, and vests in the resident owner of the land, independent of any legislation on the subject.” * * * Cooly, on Constitutional Limitations, says: “ The provisions of the Constitution which define a homestead and exempt it from forced sale are self-executing, at least to this extent, that it may admit of supplementary legislation in particulars, when itself is not complete as may be desirable, it will override and nullify *261 whatever legislation, either prior or subsequent, would limit or defeat the homestead which is thus defined and secured.”
“ And in this State it is held that the homestead right is a quality annexed to land whereby the estate is exempted from sale under execution for a debt, and it has its force and vigor in and by the Constitution. * * * This Court held that the title to the homestead is vested in the owner by virtue of the Constitution of the State, and no allotment by the Sheriff is necessary to vest the title thereto.”
This case is an important one, and much in point. It was well and thoroughly considered'. There was an application to rehear it (Adrian v. Shaw, 84 N. C., 832 ), and the Court declared, upon such application, their entire satisfaction with what was said-and decided by it.
The following named cases are all more or less to the same effect: Jenkins v. Bobbitt, 77 N. C., 385 ; Wharton v. Leggett, 80 N. C., 169 ; Gheen v. Summey, ibid., 187; Watkins v. Overby, 83 N. C., 165 ; Wyche v. Wyche, 85 N. C., 96 ; Burton v. Spiers, 87 N. C., 87 ; Cumming v. Bloodworth, ibid., 86; Murchison v. Plyler, ibid., 81; Mebane v. Layton, 89 N. C., 399 ; Markham v. Hicks, 90 N. C., 204 ; Castleberry v. Maynard, 95 N. C., 281 .
I believe I am fully warranted in saying that no case pertinent here, decided by this Court, can be found in substantial conflict with what is said and decided in the numerous cases I have cited above. In Mayo v. Cotten, 69 N. C., 289 , the learned Judge who delivered the opinion said, obiter simply, that “ section 8, Article X, of the Constitution, applies only to a conveyance of a homestead after it has been laid off.” This remark is made at the end of the opinion, no reason is given for it, and it was not at all material to what was decided.
I cannot help thinking that the opinion of the Court in this case is a substantial departure from the settled and *262 proper interpretation heretofore given to the clauses of the Constitution recited above, and that it will have the effect materially to impair the more important and beneficent features of the homestead established by the Constitution.