#### CHADBOURN SASH, DOOR AND BLIND COMPANY v. C. E. PARKER.

(Filed 6 October, 1910.)

1. Homestead — Actions to Declare Void — Parties — Independent Action — Procedure.

After judgment obtained, tbe judgment debtor conveyed bis lands to defendant wbo bad tbe sheriff to lay off homestead of tbe judgment debtor in the lands seized by tbe sheriff under execution; tbe judgment creditor brings bis action against defendant and tbe sheriff to have exemption declared void. Held, An independent action was properly brought, tbe vendee and sheriff being the parties to be effected and not parties to'the original' action of debt; and if a motion in tbe cause weré held proper, tbe court would treat tbe present action as such and regard tbe summons a notice thereof.

*1312. Homestead — Action to Declare Void — Independent Action — Procedure.

An action brought to declare null and void a homestead laid off, under execution, in the lands of a judgment debtor, does not fall within the provisions of Revisal, 699, relating to an erroneous valuation or irregularities, and hence the plaintiff’s remedy is not by exception to the valuation of the allotment, and the principle of res judicata therein has no application.

3. Homestead — Exemption Right — Estates.

A homestead in lands is not an estate therein, but a “mere exemption right.”

4. Homestead — Judgment Debtor — Vendee — Execution — Constitutional Law.

To claim a homestead in lands (Constitution, Art. X, sec. 2) it must be owned and occupied by and allotted to the claimant at the time of the issuance of the execution; and the vendee of a judgment debtor cannot claim and have laid off a homestead in the lands conveyed as against a levy by the sheriff thereon under a judgment had against the vendor prior to his deed.

5. Same — Constitutional Law — Legislative Interpretation — Precedents.

A legislative construction of the Constitution, though not binding on the courts, is entitled to great weight. Revisal, 686, is in accordance with the views of the court,, and expresses the proper construction of Constitution, Art. X, see. 2.

Appeal from Whedbee, J., at tbe July Term, 1910, of New HaNOVER.

Tbe facts are sufficiently stated in tbe opinion.

Davis & Davis for plaintiff.

S. M. Dmpie for defendant.

Glare, C. J.

Tbe plaintiff docketed a judgment against defendant Parker in New Hanover 7 December, 1908. Subsequently said Parker and wife conveyed bis lot in Wilmington- in said county to tbe defendant Pae by deed wbicb was duly registered 20 January, 1909. On 30 January, 1909, execution issued upon plaintiff’s judgment, whereupon tbe defendant Pae, wbo was in possession under bis deed from Parker, demanded that Parker’s homestead be allotted to said Pae. This tbe sheriff proceeded to have done over tbe plaintiff’s objection. This is a pro-*132eeeding against Parker, Pae and tbe sheriff to have said allotment declared void and to direct tbe sheriff to proceed to sale of said lot under tbe execution in bis bands.

Tbe defendants move to dismiss on tbe following grounds:

(1) That tbe plaintiff should have proceeded by a motion in tbe cause. But tbe defendant Pae and tbe sheriff were not parties to tbe original cause and they are tbe parties to be affected by this proceeding. Tbe defendant Parker has no interest to be affected, for all bis interest in tbe land has been conveyed to tbe defendant Pae. In Formeyduval v. Rockwell, 117 N. C., 320, and Adrian v. Shaw, 82 N. C., 474, both relied on by tbe defendants, tbe proceeding for tbe same purpose as herein was by summons. But if it could serve any material purpose to proceed by motion, in tbe cause, tbe court would not dismiss this proceeding but would treat it as a motion and tbe summons as a notice. Jarman v. Saunders, 64 N. C., 367.

(2) That tbe plaintiff’s remedy is by exception to tbe valuation and allotment, and (3) that this not being done, tbe allotment is res judicata. But these, as well as tbe first ground (above given) are based upon a misconception of this proceeding, which is not to call into question tbe allotment for erroneous valuation or irregularities under Revisal, 699, but to have tbe allotment declared null and void, because tbe lot was not “owned and occupied” by tbe defendant in tbe execution and because tbe defendant Pae was not entitled to have Parker’s homestead allotted to defendant Pae.

(4) The last exception is that Parker’s homestead in tbe land could be set apart and allotted to Pae. This presents tbe real question in tbe case.

Revisal, 686 (Laws 1905, cb. Ill), provides: “Conveyed Homestead not Exempt, when. — Tbe allotted homestead shall be exempt from levy so long as owned and occupied by tbe homesteader, or- by any one for him; but when conveyed by him in tbe mode authorized by tbe Constitution, Art. *X, section 8, tbe exemption thereof ceases as to liens attaching prior to tbe conveyance. Tbe homestead right being indestructible, tbe homesteader who has conveyed bis allotted homestead can have an*133other allotted, and as often as may be necessary: Provided, this does not have any retroactive effect.”

Leaving out unnecessary words, Art. X, section 2 of tbe Constitution, as applicable to this ease, reads as follows: “Every homestead .... to be selected by the owner thereof .... 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 on any debt.”

Clearly the Constitution intends that the homestead shall be exempt only from and after its selection by the owner, and then only such land shall be exempt as shall be owned and occupied by a resident of this State.

So that, according to the true intent and meaning of the Constitution, land must be selected by the owner and allotted before it becomes exempt. But it must also be both owned and occupied by the homesteader, and this at the time of issuance of the execution.

Certainly the defendant Parker was not entitled to have a homestead allotted in land which he had ceased to own and occupy, nor could he convey to Parker a right which he did not possess himself.

Even if the homestead had been allotted to Parker before he conveyed to Pae, when thereby he ceased to be “owner and occupier,” his right of homestead in that land ceased, just as it would if he had ceased to be a “resident of this State,” which is the third qualification (in addition to “owner and occupier”) required by the Constitution to entitle one to be a homesteader. Indeed, even when a homesteader has the above three qualifications, and the homestead has been allotted to him, the homestead may cease as to so much of the homestead as becomes in excess of $1,000 by reason of betterments or enhancement in values. Van Story v. Thornton, 110 N. C., 14; Shoaf v. Frost, 116 N. C., 677; McCaskill v. McKinnon, 125 N. C., 184; Revisal, 691. While the homestead right is indestructible, the particular homestead itself may cease, in whole or in part, in the ways just stated.

Chapter 111, Laws 1905, now Eevisal, 686, is a clearly expressed legislative construction in accordance with the above *134views. Tbis Court bad expressed tbe same view in Fleming v. Graham, 110 N. C., 374, and practically to same effect are Allen v. Bolen, 114 N. C., 565, and tbe reasoning in Jones v. Britton, 102 N. C., 169, and other cases wbicb bave beld tbat tbe homestead is a “stay of execution” and “a determinable exemption.” Bank v. Green, 78 N. C., 247, and other cases. It is true tbat a different view was beld in Van Story v. Thornton, 112 N. C., 196, by a divided court,'and other cases since (usually with two dissents). Tbe original case wbicb so beld, Adrian v. Shaw, 82 N. C., 474, was put upon tbe ground tbat tbe homestead was an “estate in land,” wbicb has been repeatedly overruled since and tbe doctrine beld tbat is a “mere exemption right.”

In tbis state of uncertainty, tbe Legislature of 1905 thought tbat tbe public interest required tbat tbe matter should be settled and expressed what was, we believe, tbe preponderating opinion of tbe bar of tbe State by tbe enactment of cb. Ill, Laws 1905 (now Revisal, 686). Tbe bill was introduced in tbe Senate by Senator (since Judge) D. L. Ward, and was favorably reported by Senator O. E. Mason for tbe Judiciary Committee. In tbe House, Judge R. R. Winborne, for the Judiciary Committee, reported it favorably with tbe proviso added, wbicb amendment was accepted by tbe Senate. Tbe Judiciary Committee in both bouses were more than ordinarily numerous and able. There appears to bave been no minority report and tbe bill was passed unanimously in both bouses.

We would not be understood as bolding tbat tbe legislative construction is binding on tbis Court, but it is always beld tbat such construction is entitled to great weight. Especially’is tbis so, when it is a legislative construction of a constitutional provision in wbicb eminent lawyers bave concurred and tbe decisions of tbe Court bave not been uniform. Resides tbe Constitution does not define tbe procedure for securing and allotting tbe homestead, but left it to be provided by tbe Legislature. In these circumstances, we should be slow to bold an act unconstitutional, for tbe United States Supreme Court has beld tbat no act should be so beld unless it is “proved beyond all reasonable doubt.” Ogden v. Saunders, 12 Wheaton, 213, Cooley Cons. Lim. (7 Ed.), 254;

*135Indeed after full consideration we think the Act of 1905 (Re-visal, 686) expresses the proper construction. That act has been acquiesced in, and not questioned, for five years. We think the matter should be deemed finally settled as therein expressed.

If the homestead was an “estate” the homesteader would destroy his right if he conveyed the allotted land, thenceforward depriving his children and himself of this constitutional protection, or else he could have a half dozen homesteads, successively taken, but all in force, when the Constitution gives him but one.

The judge properly held that the land in the hands of Pae was not exempt from sale under the execution against Parker.

Affirmed.