#### L. L. FARRIS v. S. C. HENDRICKS, D. H. COX, L. H. COX, R. F. COX, Trading as COX LUMBER CO.; SPENCER LUMBER COMPANY, WIGGINS LUMBER COMPANY, R. T. HOOD, A. E. WOLTZ, JOHN S. JENKINS and J. W. GIBSON.

(Filed 2 January, 1929.)

1. Judgment Lien — Homestead.

A duly docketed judgment is a lien on the lands of the judgment debtor, C. S., 614, but is subject to the homestead interest in the lands as provided by Const., Art. X, sec. 2.

2. Homestead — Transfer or Incumbrance — Requisites—Private Examination of Wife.

Where there is a homestead right in land, Cons., Art. X, sec. 2, the homesteader may alienate the same only with the joinder and private examination of the wife. Const., Art. X, sec. 8.

3. Homestead — Nature, Acquisition, and Extent — Property Constituting Homestead — Mortgages.

Where a mortgage on land is foreclosed and the land brings at the foreclosure sale a sum more than sufficient to pay the mortgage debt, the surplus remaining to the Constitutional limit of one thousand dollars is to be regarded as realty to which the homestead right attaches when the same has not been waived.

4. Homestead — Nature, Acquisition, and Extent — Rights of Homesteader —Judgments.

Where the judgment debtor has executed a mortgage on his lands with the privy examination of his wife after the judgment has been docketed against him and the mortgage has been foreclosed and a sum of money in excess of that required to pay off the mortgage debt, and within the *440one thousand dollar exemption allowed by tbe Constitution, is obtained in tbe foreclosure sale and tbe surplus bas been deposited in tbe office of tbe clerk of tbe court, wbicb is tbe subject of tbe action between tbe judgment creditor and tbe judgment debtor claiming bis homestead therein: Held, tbe latter is not entitled to tbe present worth of tbe corpus of tbe funds in tbe clerk’s bands computed under tbe expectancy of life under tbe mortuary tdble, but only tbe interest thereon is available to him or to those who may claim tbe homestead under tbe provisions of tbe Constitution, Art. X, sec. 2.

5. Appeal and Error — Review—Scope and Extent in General.

Where tbe cause of action bas been exclusively tried upon one theory in tbe Superior Court, tbe Supreme Court on appeal will determine'it upon that theory alone.

Appeal by plaintiff from Harding, J., and a jury, at September Term, 1928, of G-astoN.

No error.

It was in evidence that (1) The defendant, Spencer Lumber Co., had a judgment for $208.11, duly docketed in the Superior Court of Gaston County, on 11 July, 1926. (2) That plaintiff owned a house and. lot in Belmont, Gaston County. He and his wife executed to defendant, B. T. Hood, a mortgage for $700, which was recorded 31 July, 1926, in Book 186, p. 390, registry for Gaston County. B. T. Hood advertised and sold the house and lot under the mortgage on 3 September, 1927, and made a deed dated 10 October, 1927, to defendant J. W. Gibson. The land at the sale brought $1,296.75. The plaintiff was 40 years old on 24 September, 1927, and had a wife and six children, the youngest being three years old. S. G. Hendricks is the clerk of the Superior Court of Gaston County. J. W. Gibson paid the purchase price to B. T. Hood, mortgagee, who retained his debt, and on 17 December, 1927, paid the balance in excess of the mortgage $509.49 to said clerk.

Plaintiff duly demanded his homestead in the excess after paying the mortgage.

The issues submitted to the. jury and their answers thereto, were as follows:

“1. Did plaintiff own house and lot set out in the complaint? Answer: Yes.

“2. What sum was paid to S. C. Hendricks, clerk of the court, by mortgagee Hood? Answer: $509.49.

“3. What was the age of L. L. Farris at the time of the said payment ? Answer: 40 years.

“4. What amount, if any, is the plaintiff entitled to recover of the defendant, S. O. Hendricks? Answer: The plaintiff is not entitled to recover the corpus of the fund of $509.49, but is entitled to have the *441income therefrom paid to him by tbe clerk of tbe Superior Court as it accrues from year to year during tbe life of tbe plaintiff, and at bis death, to tbe wife of tbe plaintiff, if she survives him, and after her death until tbe youngest child arrives at tbe age of 21 years, if tbe youngest child should become 21 years of age after tbe death of plaintiff Farris and after tbe death of tbe plaintiff’s wife.”

To tbe findings 'of tbe fourth issue as above, under tbe peremptory instruction of bis Honor, tbe plaintiff duly excepted and assigned error.

Tbe following judgment was rendered in tbe court below: “This cause coming on to be beard before bis Honor, Wm. F. Harding, judge presiding, and a jury, and tbe jury having answered the issues as appear of record: It is therefore considered, ordered and adjudged that tbe plaintiff is not entitled to recover tbe corpus of tbe fund of $509.49, but is entitled to have tbe income therefrom paid to him by the- clerk of tbe Superior Court as it accrues from year to year during tbe life of tbe plaintiff, and at bis death to tbe wife of the' plaintiff if she survives him, and after her death until tbe youngest child arrives at tbe age of 21 years; if tbe youngest child should become 21 years of age after tbe death of plaintiff Farris and after tbe death of tbe plaintiff’s wife, that tbe costs of tbe action be paid out of funds in tbe bands of tbe clerk.”

Plaintiff tendered a judgment for $409.82, tbe present cash value or worth of bis homestead of $509.49, based on tbe table of expectancy. Plaintiff excepted to tbe judgment as rendered, assigned error and appealed to tbe Supreme Court.

Geo. W. Wilson for plaintiff.

Geo. B. Mason for defendant Spencer Lumber Go.

ClaeesoN, J.

Tbe plaintiff bad a bouse and lot in Belmont, Gaston County. Tbe defendant, Spencer Lumber Co., obtained a judgment for $208.11 and duly docketed same in tbe Superior Court of Gaston County. This was a lien on plaintiff’s land. C. S., 614. Thereafter plaintiff and bis wife executed a mortgage on tbe bouse and lot. It was sold to pay tbe mortgage debt and there was an excess over and above tbe mortgage of $509.49, which was paid to tbe clerk of tbe Superior Court of said county.

Tbe Constitution of North Carolina, Article X, section 2, is as follows: “Every homestead, and tbe dwellings and buildings used therewith, not exceeding in value one thousand dollars, to be selected by tbe owner thereof, or in lieu thereof, at tbe option of tbe owner, any lot in a city, town or village, with tbe dwelling and buildings used *442thereon, 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 premises.”

Article X, section 8: “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 a homestead shall be valid without the voluntary signature and assent of his wife, signified on her private examination according to law.”

Is plaintiff, under the mortuary tables, C. S., 1790, entitled to the present worth or cash value in $509.49, said fund representing his homestead in a house and lot, excess after paying the mortgage on the house and lot? -We think not. Plaintiff cites Wilson v. Patton, 87 N. C., 318; Leak v. Gay, 107 N. C., 468-483; Montague v. Bank, 118 N. C., 283; Duplin County v. Harrell, 195 N. C., 445; Cheek v. Walden, 195 N. C., 752.

In the Montague case, supra, it is said: “Should the land sell for more than the mortgage debt, the surplus money is still realty, in which the debtor can assert his homestead, as against any execution. Hinson v. Adrian, 92 N. C., 121.”

By a careful perusal of the cases cited by plaintiff, it will be noted that they relate to the constitutional right of the debtor to the homestead in the equity of redemption, or the proceeds in the surplus after sale under mortgage or deed of trust, being real estate, when duly demanded by the homesteader and not waived. These cases must be read in the light of the facts of the particular case. In the Wilson and Leah cases, supra, there are dicta sustaining plaintiff’s contentions. The Wilson case was cited in the Duplin County case, supra, on the aspect of the homesteader claiming his homestead in certain funds and the proceeds from the sale of the homestead. See Gulley v. Thurston, 112 N. C., at p. 112-13.

In 32 A. L. R., Anno., p. 1334, it is said: “In Gulley v. Thurston (1893), 112 N. C., 192, 12 S. E., 13, the Court, in holding that a judgment lien is superior to a subsequently registered mortgage on land held by the debtor, which is over and above the statutory homestead limit, said: ‘The question which is presented by this appeal is, which has a superior lien on land of the debtor outside of his allotted homestead — his judgment creditor whose judgment has been duly docketed, or his mortgagee whose mortgage was executed and registered after the docketing of the judgment? A bare statement that under the law (Code, sec. 435, C. S., 614), the docketing of a judgment creates a *443lien on all tbe land of tbe debtor in tbe county where docketed, from tbe date of tbe docketing, and tbat a mortgage is a lien only from tbe registration, would seem to be a sufficient answer to tbis question. It cannot be tbat tbe act of a debtor and a third party can impair or destroy tbe rights of tbe judgment creditor as to tbe excess over tbe homestead/ In Vanstory v. Thornton (1893), 112 N. C., 196, 34 Am. St. Rep., 483, 17 S. E. 566, tbe Court overruled tbe earlier case of Leak v. Gay (1890), 107 N. C., 468, 12 S. E., 312, and held tbat a judgment creditor has a lien on any surplus over and above tbe homestead exemption, and no act of tbe'debtor can impair tbe creditor’s right under tbis lien. Tbe Court said: Tn some states a docketed judgment creates no lien on tbe homestead land, but in tbis State such a judgment creates a lien on all tbe land of tbe debtor, both tbat outside of tbe homestead boundaries and tbat within those boundáries, tbe only difference being tbat tbe lien on tbat which is within tbe homestead boundaries is not enforceable by execution or other final process until there has come about, in some way, a termination of tbe debtor’s constitutional exemption rights in tbis land, which rights, vested in him by tbe organic law, may be prolonged after bis death, for tbe benefit of bis widow in some instances, and in some for tbe benefit of infant children. As we have said, be cannot now enforce bis lien on tbe homestead land, but bis debtor cannot displace tbat lien by any act of bis. It is fixed on tbe land by. law, and tbis Court can only recognize and at tbe proper time enforce it.’ ”

In tbe Vanstory case, supra, at p. 210, it is said: “If there is to be any present division of tbis fund between tbe parties, it must be a matter of arbitration or agreement among themselves, for tbe courts have no rule by which to determine what exemption rights are worth in cash, their present value, tbe length of their duration depending on too many contingencies.” These principles enumerated in tbe Vanstory case, are now applicable.

Tbe General Assembly of 1905, chap. Ill, passed tbe following: C. S., 729: “Tbe allotted homestead is 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, Article X, section eight, tbe exemption ceases as to liens attaching prior to tbe conveyance. Tbe homesteader who has conveyed bis allotted homestead may have another allotted, and as often as is necessary. Tbis section shall not have any retroactive effect.”

Tbis Court in Sash Co. v. Parker, 153 N. C., p. 130, held tbat tbis section is in accordance with tbe views of tbe Court and expresses tbe proper construction of Article X, section 2. It has been repeatedly held *444since, that the homestead exemption ceases upon its conveyance by the homesteader, in accordance with Const., Art. X, sec. 8, supra. Caudle v. Morris, 160 N. C., 168; Crouch v. Crouch, 160 N. C., 447; Watters v. Hedgpeth, 172 N. C., 310; Duplin County v. Harrell, supra; Cheek v. Walden, supra.

Defendant, Spencer Lumber Co., contends: “That the homestead right is a creature of the Constitution (Art. X, sec. 2, supra), and that neither the Constitution nor any statute makes any provision for paying to the homesteader the present cash value out of the funds, although’there are several opinions of this Court containing dicta to that effect. It respectfully insists that they are erroneous, and are not supported by authority. If such should be permitted it is easy to conceive of a .case in which the vested rights of judgment creditors in and to- the fund at the end of the homestead period would be divested, contrary to the provisions of the Constitution. A young judgment debtor, having a long expectancy, if allowed to receive the present cash value of the fund, would receive substantially the whole thereof, thus divesting or impairing the judgment lien against the entire fund, except the small balance left. If plaintiff is entitled to the present value of his expectancy, same should be computed on the basis of 4% per cent and not 6 per cent. Laws 1927, chap. 215 — ‘This bill shall apply only to estates hereafter created.’ Amending C. S., 1791.”

We think the law is in accordance with defendant’s contention that the homesteader is not entitled to the present cash value.

It should be observed that this case is presented upon a peculiar state of facts, and was tried upon a singular theory, but we are not at liberty to travel outside of the record or to determine the case on a theory different from that upon which it was tried.

We call attention to the record that suggests important questions vital that arise in everyday adjustments not presented to this Court on the present theory of the ease: (1) Spencer Lumber Co., had a first lien on the house and lot under C. S., 614. (2) Thereafter plaintiff and his wife made a mortgage on this house and lot and it was sold under the terms of the mortgage and purchased by J. W. Gibson. The land was still subject to the lien of the judgment. It brought $1,296.75, more than enough to pay the judgment of $208.11.

Plaintiff, not having waived his homestead, was entitled to a homestead in the equity. Duplin County v. Harrell, supra; Cheek v. Walden, supra. On the theory of the case as now presented to this Court, in the judgment there is

No error.