Avery, J.:
When this case was brought before us upon appeal from the rulings of the Court in the course of a trial (109 N. C., 165) it was held that the action in the then existing state of the pleadings could not be maintained by the other plaintiffs, but that as Isabella Edwards and her husband, Hal. Edwards, were not concluded by the judgment in the special proceeding, she was entitled to
bo let into possession as a tenant in common, if it should be found that she was an heir at law of Mangum Barnett, as was alleged on the one side and denied on the other, and had not aliened her interest. After amending their complaint so as to allege that none of the debts, for which the administrator of said Barnett was licensed to sell, were contracted before 1868, or wore of such a nature that the homestead of the decedent or his children could be subjected for their satisfaction, the plaintiffs Isabella Edwards and her said husband entered a
nol. ¡iros.,
and the action is now avowedly prosecuted upon the theory that the extrinsic allegations as to the character of the debts owing by Barnett give the plaintiffs a status in Court, and upon proof of their truth entitle them to recover on the ground that they have thus collaterally shown the judgment in the special proceeding to have been void
ab initio.
By the withdrawal of Isabella Edwards, as a plaintiff, counsel have emphasized their purpose to rest their right to recover exclusively on this position.
The former appeal (109 N. C., 165) wTas from a ruling of the Judge below that, upon the pleadings and testimony offered before the jury, the plaintiffs were not entitled to recover. The plaintiffs submitted to a judgment of non-suit, and upon review in this Court a new trial was granted and the plaintiffs were allowed to amend their complaint. The view, obviously entertained by the Judge below on tire former trial, was that whether the action were then treated as a direct proceeding to vacate the decree for sale, as preliminary to a demand for possession in the same suit, or simply as an action for possession in which the plaintiffs set forth in advance specific averments as to .title, for the purpose of showing that the defendants claimed title from the same source, and that the conveyance through which they deraigned title was void, in either event they had
failed, both by allegation and proof, to make a
prima facie
case. Counsel contended on the former appeal that the original complaint set forth all of the impeaching facts, upon proof of which the Court could in one action vacate the decree anti give judgment for a writ of possession. Eliminating the question as to the rights of Isabella Edwards, which is no longer involved, the Court here sustained the ruling below, assigning as a reason, among others, for so holding, that oven where a plaintiff relied upon a sale under execution and a Sheriff’s deed in deraign-ing his title, if, upon an exhibition of the judgment, execution and levy, it did not appear whether the judgment was rendered for a debt for which the homestead could be subjected or not, he was
prima facie
entitled to recover — citing
Mobley
v.
Griffin,
104 N. C., 112:
McCracken
v.
Adler,
98 N. C., 400, and
Wilson
v.
Taylor, Ibid.,
275, to sustain that view. Considered, then, as a direct attack, and even giving the plaintiffs the benefit of the liberal rule applicable to sales under execution, instead of to judicial sales, the original complaint would have fallen short of showing apparent title in failing to negative the right to sell under the decree. The first complaint, considered as an impeachment of the decree because it required an illegal sale of a homestead, did not state facts sufficient to warrant a judgment vacating it, because of the failure to make the negative averment. If they rested their demand for such relief, preliminary to the grant of a writ of possession, upon the alleged irregularities in the proceeding, then the curative statutes passed from time to time by the General Assembly were held to have validated the decree. 'The cases of
Ward
v.
Loundes,
96 N. C., 367;
Fowler
v.
Poor,
93 N. C., 466 ;
Morris
v.
Gentry,
89 N. G., 248;
Cates
v.
Pickett,
97 N. C., 21, and others, sustain the position. So that in neither aspect of the
pleadings were the plaintiffs then entitled to recover upon proof of all that was alleged.
Advancing a step further, the original plaintiffs, other than Isabella Edwards and her husband, demand in their amended complaint that upon proof that the license was granted to create assets for the payment of debts, for which the homestead would not have been liable to sale, if objection had been made in apt time on behalf of some of the plaintiffs, the decree shall be set aside even now after the infants, who were parties to the original proceeding, have arrived at maturity, and when the lands have passed by a second judicial sale as the property of the purchaser at that sale into the hands of strangers who have bought in good faith.
It seems that the learned Judge below was misled, possibly by the want of perspicuity in the opinion or the failure to extend the discussion so as to anticipate the phase which the case has now assumed, though the statement that comes up contains a disavowal of any purpose to make a ruling in conflict 'with that of this Court.
The statute
(The Code,
§502) enjoins upon the Sheriff the mandatory duty of summoning three discreet persons to appraise and allot a homestead to any judgment debtor who is entitled to such exemption, before levying an execution in his hands upon the land. Neither his ignorance of the rights of a debtor nor his obstinate refusal to recognize them will be allowed to defeat the latter's claim to the benefit of a home for which the Constitution provides, though the presumption of law prevails in favor of the legality of his action in selling, till a party attacking it shows its invalidity because made in disregard of a statute enacted to carry into effect the organic law.
Mobley
v.
Griffin
and
Wilson
v.
Taylor, supra.
The sale by the Sheriff' was not under a judicial decree, and if he flies in the face
of a mandatory provision of law, by accident or design, lxis acts must be declared void at the instance of a party who shows even collaterally, after a proper averment, that his constitutional rights were disregarded.
If the judgment in the special proceeding were reversed for irregularity, a purchaser “ at a sale made under and in pursuance of such judgment, which was in force and which was authorized, will be protected. All that the purchaser in such case is required to know is that the Court had jurisdiction of the subject-matter and the person and made the judgment, upon the faith of which he purchased, and that such judgment authorized the sale.”
England
v.
Garner,
90 N. C., 197;
Williams
v.
Johnson,
decided at this Term.
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Avery, J.:
When this case was brought before us upon appeal from the rulings of the Court in the course of a trial (109 N. C., 165) it was held that the action in the then existing state of the pleadings could not be maintained by the other plaintiffs, but that as Isabella Edwards and her husband, Hal. Edwards, were not concluded by the judgment in the special proceeding, she was entitled to
bo let into possession as a tenant in common, if it should be found that she was an heir at law of Mangum Barnett, as was alleged on the one side and denied on the other, and had not aliened her interest. After amending their complaint so as to allege that none of the debts, for which the administrator of said Barnett was licensed to sell, were contracted before 1868, or wore of such a nature that the homestead of the decedent or his children could be subjected for their satisfaction, the plaintiffs Isabella Edwards and her said husband entered a
nol. ¡iros.,
and the action is now avowedly prosecuted upon the theory that the extrinsic allegations as to the character of the debts owing by Barnett give the plaintiffs a status in Court, and upon proof of their truth entitle them to recover on the ground that they have thus collaterally shown the judgment in the special proceeding to have been void
ab initio.
By the withdrawal of Isabella Edwards, as a plaintiff, counsel have emphasized their purpose to rest their right to recover exclusively on this position.
The former appeal (109 N. C., 165) wTas from a ruling of the Judge below that, upon the pleadings and testimony offered before the jury, the plaintiffs were not entitled to recover. The plaintiffs submitted to a judgment of non-suit, and upon review in this Court a new trial was granted and the plaintiffs were allowed to amend their complaint. The view, obviously entertained by the Judge below on tire former trial, was that whether the action were then treated as a direct proceeding to vacate the decree for sale, as preliminary to a demand for possession in the same suit, or simply as an action for possession in which the plaintiffs set forth in advance specific averments as to .title, for the purpose of showing that the defendants claimed title from the same source, and that the conveyance through which they deraigned title was void, in either event they had
failed, both by allegation and proof, to make a
prima facie
case. Counsel contended on the former appeal that the original complaint set forth all of the impeaching facts, upon proof of which the Court could in one action vacate the decree anti give judgment for a writ of possession. Eliminating the question as to the rights of Isabella Edwards, which is no longer involved, the Court here sustained the ruling below, assigning as a reason, among others, for so holding, that oven where a plaintiff relied upon a sale under execution and a Sheriff’s deed in deraign-ing his title, if, upon an exhibition of the judgment, execution and levy, it did not appear whether the judgment was rendered for a debt for which the homestead could be subjected or not, he was
prima facie
entitled to recover — citing
Mobley
v.
Griffin,
104 N. C., 112:
McCracken
v.
Adler,
98 N. C., 400, and
Wilson
v.
Taylor, Ibid.,
275, to sustain that view. Considered, then, as a direct attack, and even giving the plaintiffs the benefit of the liberal rule applicable to sales under execution, instead of to judicial sales, the original complaint would have fallen short of showing apparent title in failing to negative the right to sell under the decree. The first complaint, considered as an impeachment of the decree because it required an illegal sale of a homestead, did not state facts sufficient to warrant a judgment vacating it, because of the failure to make the negative averment. If they rested their demand for such relief, preliminary to the grant of a writ of possession, upon the alleged irregularities in the proceeding, then the curative statutes passed from time to time by the General Assembly were held to have validated the decree. 'The cases of
Ward
v.
Loundes,
96 N. C., 367;
Fowler
v.
Poor,
93 N. C., 466 ;
Morris
v.
Gentry,
89 N. G., 248;
Cates
v.
Pickett,
97 N. C., 21, and others, sustain the position. So that in neither aspect of the
pleadings were the plaintiffs then entitled to recover upon proof of all that was alleged.
Advancing a step further, the original plaintiffs, other than Isabella Edwards and her husband, demand in their amended complaint that upon proof that the license was granted to create assets for the payment of debts, for which the homestead would not have been liable to sale, if objection had been made in apt time on behalf of some of the plaintiffs, the decree shall be set aside even now after the infants, who were parties to the original proceeding, have arrived at maturity, and when the lands have passed by a second judicial sale as the property of the purchaser at that sale into the hands of strangers who have bought in good faith.
It seems that the learned Judge below was misled, possibly by the want of perspicuity in the opinion or the failure to extend the discussion so as to anticipate the phase which the case has now assumed, though the statement that comes up contains a disavowal of any purpose to make a ruling in conflict 'with that of this Court.
The statute
(The Code,
§502) enjoins upon the Sheriff the mandatory duty of summoning three discreet persons to appraise and allot a homestead to any judgment debtor who is entitled to such exemption, before levying an execution in his hands upon the land. Neither his ignorance of the rights of a debtor nor his obstinate refusal to recognize them will be allowed to defeat the latter's claim to the benefit of a home for which the Constitution provides, though the presumption of law prevails in favor of the legality of his action in selling, till a party attacking it shows its invalidity because made in disregard of a statute enacted to carry into effect the organic law.
Mobley
v.
Griffin
and
Wilson
v.
Taylor, supra.
The sale by the Sheriff' was not under a judicial decree, and if he flies in the face
of a mandatory provision of law, by accident or design, lxis acts must be declared void at the instance of a party who shows even collaterally, after a proper averment, that his constitutional rights were disregarded.
If the judgment in the special proceeding were reversed for irregularity, a purchaser “ at a sale made under and in pursuance of such judgment, which was in force and which was authorized, will be protected. All that the purchaser in such case is required to know is that the Court had jurisdiction of the subject-matter and the person and made the judgment, upon the faith of which he purchased, and that such judgment authorized the sale.”
England
v.
Garner,
90 N. C., 197;
Williams
v.
Johnson,
decided at this Term. The Court had the authority in that proceeding to order a sale to create assets, and the defendants, as appears from the complaint, claimed either directly or indirectly from Sallie Barnett, who purchased at the sale under the decree.
We may add that the beneficent provisions of the Constitution exempted the homestead from the payment of any debt of the owner “ during the minority of the children, or any one of them” (Art. X, sec. 3), for the purpose of ' providing them a home, and where they fail to make claim to such exemption as parties to a proceeding which involves their right, and suffer a decree to be entered, which is inconsistent with such right, they will not be allowed after arriving at years of maturity to have the decree declared void, and cause innocent purchasers at the sale and those claiming under them to suffer by reason of their reliance upon the stability and validity of the decree. The plaintiffs, who were infants then, are adults now and no longer entitled to the benefits not asked in their behalf when their right to them was drawn in question.
Hughes
v.
Hodges,
102 N. C., 236.
Wo think that the Court below erred in overruling the demurrer. It should have been sustained, with a proviso that the plaintiffs might amend upon' such terms as might have been thought proper.
Judgment Reversed.