* Head-notes by AVERY, J.
The plaintiff claimed under a Sheriff's deed, executed September 5, 1887. The Sheriff sold by virtue of an execution issued on a judgment against the defendant, rendered on a cause of action ex contractu, that arose prior to the year 1867. But while the execution was in the hands of the Sheriff, the defendant Walker paid to the plaintiff, in the execution of the principal and interest of the judgment, but no part of the costs, and took his receipt in form as follows:
"Received of W. A. Walker one hundred and forty-nine 82/100 dollars in full payment of the principal and interest of the debt (not including costs) in the judgment of the Superior Court of Iredell County in the case of John F. Long and W. H. Cowan, administrators of W. F. Cowan, deceased,against G. W. Weir and wife, W. A. Walker and others. This 30th day of March, 1887.
(Sig.) WM. H. COWAN, EX'r of W. F. Cowan."
(93) The Court submitted, without objection, the issues herein set out, which, with the findings of the jury, are as follows:
1. At the date of the execution sale, did the defendant occupy the lands described in the complaint as one farm and tract and reside thereon and cultivate and use the same as such? Answer, Yes.
2. Was the principal and interest of the judgment and execution under which the lands were sold, paid to the plaintiff therein in full before the sale, and did he satisfy and discharge said principal and interest? Answer, Yes.
3. If so, did plaintiff Long have notice at time and before said sale that said principal and interest had been fully paid? Answer, Yes.
4. What was the value of said lands at date of said sale? Answer, $1,900.
5. What is the annual value or rents of the part thereof called "Luck" land? Answer, $45.
6. What was the value of the part of said lands described in complaint called "Walker" land? Answer, $1,450.
After the issues were found by the jury, the plaintiff moved for judgment for the part of the land described in complaint as the Luck tract of land, plaintiff admitting that he was not entitled to recover the other part of the land known as the Walker land. Plaintiff also moved for judgment for rents of Luck land from date of purchase, September 5th, 1887. The plaintiff contended:
1. That it was unnecessary to assign the defendant's homestead because the judgment was rendered on a debt contracted prior to 1868.
2. That plaintiff disclaiming as to the tract called the Walker tract, the defendant would have all he was entitled to under the constitutional provision, and that plaintiff would, in any event, be entitled to the tract called Luck tract.
3. That although the jury find the second issue against the (94) plaintiff, yet the costs remain unpaid, and that although said costs are admitted to have accrued since the year 1868, still they are an incident to the original debt.
The defendant inherited the Walker track of from 250 to 300 acres from his father, and bought the Luck tract of 50 acres, many years ago, and added to it. He lived on the Walker tract, and still lives on it; but for many years prior to the sale, and since he bought the Luck place, has used the two as one farm, had a single fence that enclosed the cultivated lands on both tracts, and had the two listed as one tract for taxation.
There was judgment for the defendant, from which plaintiff appealed.
The law in force before the year 1867, when the contract between the testator of Cowan, the plaintiff in the execution, and the defendant Walker was made (Rev. Code, ch. 31, sec. 75), provided that, on default in payment, judgment for the debt, with "full costs," should be awarded to the payee in a suit brought for its enforcement. The statutory right to recover not only principal and interest, but disbursements incident to the prosecution of the action, therefore entered into and formed a part of the original agreement between the creditor and debtor, just as though the provisions of the
law had been incorporated in it, and was, in legal intendment, one of the inducements to the former to loan the money or part with the property that constituted the consideration of the contract. Cooley's Const. Lim., p. 285; Koonce v. Russell, 103 N.C. 179; Von Hoffman v. City of Quincy, 4 Wall., 535.
(95) The costs taxed by the Clerk when judgment is rendered, and that accruing in favor of the Sheriff while the execution is in his hands, may be collected by the officers in advance of discharging the duty, from the plaintiff, and the law gives the plaintiff a lien upon the same property, and to the same extent, for the security of his disbursements as for the principal and interest of his debt. Freeman, in his work on Judgments, §§ 338, says: "The lien of a judgment attaches to all the interests which the debtor had at the rendition of the judgment. A subsequent sale, under the judgment, relates back, so as to transfer allthe title which the debtor had when the lien attached. But where costs areincurred in enforcing a lien, they are to be paid out of the proceedsrealized, and are preferred to the lien." See also Shelly's Appeal, 38 Penn. St., 210; McNeill v. Bean, 32 Vt. 429.
But the case of Knight v. Whitman, 6 Bush. (Ky.), 51, is directly in point, and is decisive of the doctrine that the costs incident to the collection of a debt, and the enforcement of a judgment for it, are deemed to constitute a part (if not a favored part), of the debt, and any property liable to be subjected to the lien for the judgment debt may be sold for the costs. The Court of Kentucky say, in the opinion referred to: "It is insisted that, this judgment being in 1867, the homestead not being worth one thousand dollars, was not liable to sale under this execution, but was protected by our statute of February 10th, 1866, which enacted that, in addition to the personal property now exempt from execution on all debts and liabilities, created or incurred after the first of June, 1866, there shall be exempt from sale under execution, c., so much land, including the dwelling-house, c., owned by the debtor, as shall not exceed in value one thousand dollars. * * * Then it has been judicially ascertained that the defendant was liable to plaintiff when said suit was brought in 1865, and anterior to June 1st, 1866, therefore said homestead exemption statute is inapplicable. * * * It is said, (96) however, that the costs were subsequently incurred, hence the homestead was not liable therefor. It is sufficient to say, that the exemption under the statute of February, 1866, is only applicable to debts and liabilities created or incurred after June 1st, 1866, so that in all that class of cases existing prior thereto there is no homestead exemption. The costs of all such cases are only incidents attached thereto,and must be governed by the laws applicable to the debt or liability out ofwhich they grow." The only difference material for the purpose of this
discussion between the homestead provision of our Constitution and the Kentucky statute, is that the latter, by its express terms, did not apply to antecedent liabilities, while the former was limited in its operation by the construction given it by the Supreme Court of the United States, as to contracts made subsequent to its adoption. In Slaughter v. Winfrey,85 N.C. 159, which was an action by a landlord to enforce a lien for rent against his tenant, the late Chief Justice SMITH says, for the Court: "As the act requires the seizure of a sufficient part of the crop to meet the plaintiff's demand, and costs as well, it is obvious that both must be satisfied out of the proceeds of sale, when so adjudged by the Court. If it were otherwise, the rent would be practically reducedby the cost incurred in obtaining it, and to this extent the amplesecurity, intended by the statute, be impaired by the use of thenecessary means of making it available to the landlord."
But it was suggested, rather than contended, on the argument by defendant's counsel, that, though costs incident to the judgment may be collected, along with principal and interest, and retained out of the proceeds of a sale under execution by the Sheriff and Clerk, still the payment of principal and interest of the judgment to the creditor would destroy the lien of the incident, just as the receipt by a plaintiff from a defendant, without any specific agreement as to costs, of the full amount of a debt demanded in an action pending for its collection, has been held to discharge the latter from liability to a judgment for (97) costs of such suit. There is a wide difference, however, between the relations of the parties after the rendition of judgment and prior thereto. After judgment, the officers of the Court acquire the right to enforce the collection of their fees, and to all the security for the payment of them that the plaintiff had for his judgment debt, and, in addition, a right, in some instances, of retainer out of funds in the Clerk's office. Clerk's Office v. Allen, 52 N.C. 156; Clerk's Office v.Bank, 66 N.C. 214.
In Clerk v. Wagoner, 26 N.C. 131, Chief Justice RUFFIN, delivering the opinion of the Court, says: "It has been usual for the officers of the Court to indulge the successful party for his costs until a return of his execution therefor against the party cast. If raised on that execution, theofficers, instead of the party, receive them. It is clear that every party may be required to pay his own costs as they are incurred, or at any time when demanded. * * * In Lockman's case, 12 N.C. 146, it is true the execution against the successful party was not moved for until a return ofnulla bona on a fi. fa. against the party cast." The Clerk has the right to retain the Court costs out of the amount returned by the Sheriff as net proceeds of sale after deducting his fees, and neither of them can be compelled, by reason of any compromise made by
the judgment creditor with the debtor, to look exclusively to the former on his prosecution bond, or prevented from exhausting his remedy against the latter by the issue of execution and a sale of such property as may be found liable to be subjected under it.
It is manifest, therefore, that if the Sheriff was not required by law to have a homestead allotted to the defendant in his land, and levy first on the excess, if any, to satisfy the execution before the debt was paid to Cowan, it was no more essential to the validity of the sale that (98) it should have been done afterwards and before selling under the execution when only costs remained unpaid.
"The obligation of a contract is the law which binds the parties to perform their agreement." Sturges v. Crowningshield, 4 Wheaton, 122. "The prohibition has no reference to the degree of impairment. The largest and the least are alike forbidden." Von Hoffman v. City of Quincy, 4 Wall., 535 (7 Myer's Fed. Dec., sec. 1879). Looking to the governing principle, as settled by the Supreme Court of the United States, we find that the touchstone for testing the constitutionality of a statute, requiring a pre-existing creditor to pay for the appraisement and allotment of exemptions to his debtor before he can cause a levy to be made upon the property of the latter, is found in the question whether the enforcement of the law throws the smallest impediment in the way of the collection, or in the slightest degree diminishes the value of the claim below what it would have been if no such trouble and expense were incident to the sale.
The right of the States to alter the remedy has this limit, that they must not impair it, because the right to impair means a license to destroy.McCulloch v. Maryland, 4 Wheaton, 416; Edward v. Kearsy, 96 U.S. 600. "The obligation of a contract includes everything within its obligatory scope. Among these elements, nothing is more important than the means of enforcement. This is the breath of its vital existence. * * * One of the tests that a contract has been impaired is that its value has by legislation been diminished. Ibid.,600 and 601.
Upon the principle to which we have already adverted, the plaintiff in execution (Cowan) had a right to enforce the collection of his judgment in the manner and by the machinery provided by law when the debt was contracted, unless a new remedy had meantime been substituted by law, which would enable him to subject the property of the debtor with as little embarrassment as under the former law, and (99) without any diminution in the value of his judgment due to the new method of proceeding. Before the year 1867, the creditor could cause execution to issue on his judgment (under the provisions of ch. 45, secs. 1 and 2 Revised Code) against the lands as well as the personal goods of the debtor, and if there were no personal property, or, in the
opinion of the Sheriff, not enough to satisfy the judgment, the officer would levy upon and sell, without expense or embarrassment, the whole body of his land, if necessary, and, in any event, his entire interest in that sold. Instead of this speedy, unrestricted remedy against the property of the debtor of every species, afforded by law when the contract was made, the creditor is now restricted to the circuitous method of selling the property by piece-meal, pointed out in Morrison v. Watson,101 N.C. 332, and is subject to delay, hindrance and chances of serious loss by being forced to pay in advance all the costs of appraising the personal property exemptions and allotting the homestead preliminary to any sale and satisfaction at all, unless where he will assume the risk of showing the debtor's land is worth less than one thousand dollars. The requirement that a creditor must submit to this new exaction, not in contemplation of the parties when the contract was made, must, of necessity, diminish the value of the debt in the ratio of the risk, the outlay of money and the hindrance attending the prescribed method of collection, as compared with that incident to it under the law in force before the year 1867. To the extent of the diminution in the value of the debt, or the delay or hindrance caused by the change in the law, the remedy is impaired. Bronson v. Knight,1 How., 311; Evans v. Montgomery, 4 Watts S. (Pa.), 218; Reade v. Frankfort Bank,23 Mo., 518; Carson v. Arkansas, 15 How., 513; Oatman v. Bond, 15 Wis. 28;Mundy v. Munroe, 1 Mich. 76. "The rule seems to be that in modes of proceeding and forms to enforce the contract, the Legislature has control and may enlarge, limit or alter them, provided it does not (100) deny a remedy or so embarrass it with conditions and restrictions as seriously to impair the value of the right." Tenn. v. Sneed, 6 Otto, 69. "A creditor by contract has a vested right to the remedies for the recovery of the debt, which existed at law when the contract was made, and the State Legislature cannot take them away without impairing the obligation of the contract, though it may modify them, and even substitute others, if a sufficient remedy be left, or another sufficient one be provided." Memphis
v. United States, 7 Otto, 295.
But conceding, merely for the sake of argument, that it is doubtful whether the change in the remedy made in the construction placed upon TheCode, §§ 502-508, in Morrison v. Watson, supra, is such as to bring the law within the inhibition of Art. I, § 10 of Constitution of the United States, as an unwarranted modification, still reason and public policy combine to dictate a return to the principles laid down by this Court and acted on in the adjustment of rights of property in the general settlement consequent upon the decision in Edwards v. Kearsy, supra (October, 1887). Prior to the publication of the ruling in that case, this Court had uniformly held the exemption laws embodied in Art. X
of our Constitution, and the statutes enacted in pursuance of it, applicable alike, whether the appraisement was made necessary by a judgment arising on a contract entered into anterior or subsequent to the adoption of the Constitution on April 24, 1868; but a new judicial departure was rendered imperative when the foundation upon which the Court had been building for nine years was so suddenly swept away. Accordingly, in Gheen v. Summey, 80 N.C. 188, Justice ASHE, delivering the opinion of the Court, says: "The Act of April 7, 1869, being void as to debts contracted prior to the 24th of April, 1868, then all theprovisions of that act, with regard to the machinery for carrying out the provisions of the Constitution are void as to the same class of
(101) debts." At the same term (January, 1879), but earlier, this Court decided Earle v. Hardie, 80 N.C. 177, the first case in which this question of the validity of the Homestead Machinery Act (Battle's Rev., ch. 55, Act of April 7, 1869), as applied to contracts created before April 24, 1868, was discussed after the decision in Edwards
v. Kearsy, and the Court said: "The second section of Art. X of our Constitution of 1868 having been declared void as against debts previously contracted, the Act of the Legislature, passed on the 7th of April, 1869, * * * to carry its provisions into effect, is also void." The same principle was held at that term in Gamble v. Rhyne, 80 N.C. 183, to apply to the personal property exemption, and in more decided language (at the January Term, 1880) in Carlton v. Watts, 82 N.C. 212, where the Court says: "This being an old debt, contracted in 1860, the defendant was not entitled to the exemption of five hundred dollars guaranteed by the Constitution, but only to such exemption as was secured to him by the law existing at the date of the contract." Again, at October Term, 1882, in Wilson v. Patton,87 N.C. 318, this Court recognized the validity of a sale without allotting a homestead, because three of the seven executions under which the Sheriff sold were issued on judgments rendered on old debts and in adjusting the distribution of the proceeds of sale the Court held that all of the fund might be applied, if required, in satisfaction of the three judgments; but that an equivalent in money of one thousand dollars must be treated as the homestead against the other debts, thus again reiterating in substance the principle first laid down in Earle v. Hardie. In Grant v.Edwards, 86 N.C. 513, it was again announced that the Act of 1869 was not intended to apply where execution issued on old debts.
As is clearly demonstrated by Justice Davis, in his dissenting opinion in Morrison v. Watson, 101 N.C. 332, the case of Albright v. (102) Albright, 88 N.C. 238, was decided upon a principle that in no way involved this question; and in that of Arnold v. Estis,92 N.C. 162 (February Term, 1885), the decision rested on the ground
that the sale was made to satisfy a new, as well as an old debt, and was held invalid for that reason, while the Court cited, and expressly approved, the four rules laid down in Mebane v. Layton, 89 N.C. 396, one of which was that a sale to satisfy an old debt could be lawfully made without laying off the homestead of the debtor. So in Miller v. Miller,89 N.C. 402, there is an intimation (which is entirely obiter) of the view subsequently taken by a majority of the Court in Morrison v. Watson,101 N.C. 332, but the sale of the land to satisfy an old debt, without allotting a homestead, was held valid.
So that, apart from some unnecessary intimations, there was an unbroken line of authorities adhering to the doctrine enunciated in Earle v. Hardie
down to McCanless v. Flinchum, 98 N.C. 358, where a majority of the Court declared, and the subsequent case of Morrison v. Watson, 101 N.C. 332, in which a majority of the Court held that it was essential to the validity of the sale of land under execution issuing on a debt originating before the adoption of the provision contained in Article X of the Constitution, that a homestead be allotted to the execution debtor, unless it clearly appeared that, at the time of the sale, the debtor did not own lands subject to execution of the value of one thousand dollars. In that case, too, the Court say: "The charge given is obnoxious to no just complaint of the plaintiff, for it requires him to show that the lands were worth less than one thousand dollars, the maximum allowed for homestead, increased by the debt, interest and cost."
The same creditor who, prior to the year 1867, could cause to be sold under execution, free from vexations delay, the whole of his debtor's land, without regard to its value, dare not now sell without incurring the costs of allotment of homestead, unless he is not only assured himself, but is confident that he will be able to satisfy any jury (103) called upon to try the issue of title for an indefinite period in the future, that the land was not worth, at the time of sale, more than the sum of one thousand dollars, with the Court costs and that of allotment added. The burden is cast upon him to show that the value was less, or have the sale declared void. Consequently, though the judgment debt may amount to many thousands of dollars, if the creditor finds that the estimates of different persons as to the value of the debtor's land vary from eight hundred to two thousand dollars, he cannot afford to buy himself, nor can he induce others to purchase the land at execution sale until it is valued by appraisers at his expense. If, by selling the excess, if any, and then the allotment, the sum realized is still insufficient to pay the whole debt, the creditor has been compelled to make a disbursement that he will now lose, and to which, under the old law, he would not have been subjected. For the purpose of adjusting the rights of creditor and debtor under the old law, the criterion of the value of land was the
amount it would bring at a fair and open sale at public auction by virtue of the execution, and unless such sale could be successfully impeached for fraud, as in preventing a fair competition of bidders, the purchaser got a good title without regard to the amount of his bid. If an attempt had been made to set aside such sale on the ground that competition of bidders was suppressed, the presumption of law would have been in favor of its validity, and the party alleging fraud would have been required to prove it to the satisfaction of a jury. But, under the doctrine laid down in Morrison v. Watson, supra, the purchaser at a sale made without laying off the homestead, because the creditor believed the land worth less than one thousand dollars and costs, buys with the burden (without regard to the price for which the land actually sells) of satisfying a jury, even in the distant future, that it is not worth one thousand (104) dollars and costs. Common observation has taught us that the estimates of juries as to value in such cases are as widely variant as the opinions of witnesses on the same subject, and yet, if the estimate of value exceeds one thousand dollars and costs by even one dollar, the deed of a purchaser at such sale must be declared void.
It cannot be successfully contended that the testator of Cowan would not have been placed in such a dilemma as would have greatly embarrassed him in pursuing his remedy and probably have decreased the value of his judgment, had not the defendant Walker been unwilling to risk the validity of a sale for the principal and interest of the debt. The plaintiff who bought at the sale for costs occupies the same position as if the land had been sold for the debt as well as costs, and the officers of the Court were not bound to advance the money necessary to lay off the homestead and incur the risk of reimbursement. The bill of costs must have been very small if it did not exceed the plaintiff's bid of ten dollars. It is the folly of the debtor if, by reason of the uncertainty as to the validity of the sale, the land brought less than its value. He ought to have paid the costs when he paid the debt. The fact that the Court so construes The Code as to impose upon the creditor or other purchaser, as the case may be, a new burden that would not have attached to a sale under the former law, or to require him to make, at his peril, inquiries and acquire information as to values, clogs the sale with conditions, and is manifestly calculated to diminish the value of the debt and interfere seriously with its collection.
The question, whether we shall adhere to the rule, for the first time distinctly stated in Morrison v. Watson, supra, at the September Term, 1888, of this Court, or overrule that case and sustain the unbroken current of authority recognized for nearly ten years previous, is one of no little moment to the people of the State. From the time when (105) the decision in the case of Earle v. Hardie was published, in
January, 1879, it was accepted as the basis of proceedings to collect probably thousands of judgments on old claims, for the satisfaction of which all the land of the debtor had been declared liable in Edwards v.Kearsy. The idea that there would be stability in these first decisions was strengthened by the legislative construction given by the Act of 1879, ch. 256, ratified March 14th, 1879 (that being the first General Assembly that met after the publication of the opinion in (Edwards v. Kearsy). The preamble of the act declares that, "Whereas, the Supreme Court of the United States, in the case of Edwards v. Kearsy, decided at the October Term, one thousand eight hundred and seventy-seven, that the personal property exemptions and homesteads provided for by sections one and two, article ten, of the Constitution of North Carolina, were inoperative in respect to debts and obligations contracted prior to the adoption of said Constitution; and whereas, doubts exist whether the various statutes providing for the exemption of property from execution, which were in force at the date of the adoption of said Constitution, have not been repealed,"c.
The act, then, assuming the Constitution and machinery for allotting homesteads to be void as to debts contracted before the Constitution was adopted, provides that debtors, as against such claims, may have set apart to them such homestead as not to exceed one thousand dollars in value, and such personal property, not to exceed five hundred dollars, as they may have been entitled to under any law in force before the adoption of said Constitution, c. This statute is worthy of grave consideration, both as a contemporaneous legislative construction of the law, and because it was calculated, considered with our decisions mentioned, to induce, and did induce, persons to buy land sold for old debts without allotment of homestead. In fact, upon an examination of the Act of 1879 and chapter 10 of The Code, and comparing them (106) with chapter 137, Acts of 1868-'69 (Battle's Rev., ch. 55), it will be found that there has been no statute in force since the passage of the Act of 1879, requiring, or authorizing, a Sheriff or other officer to lay off and set apart a homestead before levying upon the real estate of the execution debtor, where the execution is for the collection of a debt contracted prior to April 24, 1868; for chapter 10 of The Code, which is substantially a re-enactment of chapter 256 of the Acts of 1879, and so much of chapter 137 of the Acts of 1868-'69 as provides the machinery for carrying it into effect, among other things provides (sec. 501, sub-sec. 3), "that property, real and personal, as set forth in Art. X of the Constitution of the State," shall be exempt from sale under execution "upon debts contracted and causes of action accrued since April 24, 1868," and while § 502 of The Code purports to be a re-enactment of § 2, ch. 137 of the Acts of 1868-'69, it, in fact, so alters and amends that section, as
will be seen by comparing them, as to make it conform to the Act of 1879 by providing that the Sheriff, or other officer, charged with the levy of execution, shall summons appraisers, c., "before levying upon the real estate of any resident of this State who is entitled to a homestead under this chapter," c.; and "this chapter" (The Code, ch. 10) only entitles the execution debtor to the homestead exemption "upon debts contracted or causes of action accrued since April 24, 1868." The words, "entitled to a homestead under this chapter," are not in § 2, ch. 137 of the Acts of 1868-'69, and they limit the Sheriff's duty in laying off the homestead before levy to executions "upon debts contracted, or causes of action accrued since April 24, 1868," as provided "under this chapter" (The Code, ch. 10, § 501, sub-sec. 3); thus amending the provisions of the Act of 1868-'69 (which this Court, following the decision in Edwards v. Kearsy, had declared unconstitutional) (107) so as to make the machinery for laying off the homestead conform to the Act of 1879 and the ruling in Edwards v. Kearsy.
This is not the ordinary case in which the doctrine of stare decisis can be invoked as furnishing a sufficient reason for sustaining the last adjudications of the Court. The general policy of adhering to the declared opinions of the Court is subject to the limitation that inadvertent decisions should be overruled, unless they have been acted on for a long time and property has been bought by reason of the public faith in the stability of the principle decided in them. The legislative and judicial constructions of the Constitution, made first in the year 1879, led to sales under the advice of counsel at every court-house in the State in disregard of the Act of 1869, and the lands bought, had, under the confidence, strengthened by repeated subsequent adjudications, been transmitted by descent and conveyed by deeds with covenants of warranty, until now it is probable that many thousands of people will be seriously damaged if a Sheriff's deed, constituting an essential link in their claims of title, is to be held void because this Court has modified its explicit construction of the homestead laws, in conformity with which the sale was made by the Sheriff. It will make no difference to the numberless intermediate purchasers, who paid full value on the advice of counsel predicated upon the opinion of this Court, whether the land originally sold under execution for ten or for ten thousand dollars. Neither the question whether we will adhere to the settled interpretation of the Federal Constitution, nor whether we should protect those who invested money or incurred pecuniary liability, under the reasonable belief that the Homestead Machinery Act of 1869 had been declared null and void, can be dwarfed or magnified in importance as principles in the ratio of increase or decrease in the amount of the bid at public vendue.
In holding, as we do, that the sale is valid and the (108) plaintiff's title to the "Luck Place" good, he having disclaimed as to the other tract, we restore vitality to numerous titles for which persons have been induced to expend their money by the plain declaration of this Court that the Machinery Act of 1869, "so far as it provides for laying off and allotting homesteads against debts contracted prior to the 24th of April, 1868, the date of the adoption of the Constitution, is void." Gheen v. Summey, supra.
On the other hand, the rule was laid down in Wyche v. Wyche, 85 N.C. 96, that a purchaser at a sale of land, made by a Sheriff in 1869 under execution, to satisfy an old debt, subject to the homestead, took the land with the encumbrance, and the whole tract having been allotted to the debtor, that only the reversionary interest passed to him. In the cases ofCorpening v. Kincaid, 82 N.C. 202, and Lowdermilk v. Corpening, 92 N.C. 333, it was settled that the creditor, in selling to satisfy an old debt, might recognize the homestead (in that case allotted) for the benefit of the "homesteader," and sell the reversionary interest before the passage of the Act of 1870, forbidding a separate sale of said interest. This principle is in no way dependent on the obiter intimation given in the latter case of the subsequent holding in Morrison v. Watson.
It will be conceded that the act forbidding the sale of the reversionary interests is as certainly invalid and unconstitutional as the provision of the organic law exempting the homestead as a prohibition against proceedings to collect debts created before April 24, 1868. But, while the creditor may sell the entire interest of the debtor, passing to the purchaser the fee-simple and driving the debtor from his home, it is clear that, under the rule and reasoning in Wyche v. Wyche, Barrett v. Richardson
and Lowdermilk v. Corpening, supra, if he permit the Sheriff, as his agent, in mercy to the debtor, to sell, "subject to the homestead" (allotted or unallotted), the sale is valid and passes the reversionary interest only. In Barrett v. Richardson, 76 N.C. 429, (109) Justice READE, for the Court, says: "The defendants claim the land, discharged of the homestead, upon the ground that the debts for which the land was sold were contracted prior to the adoption of the Constitution, and that, therefore, the plaintiff had no right to claim a homestead as against those debts. Grant that for the sake of argument, and grant that the plaintiffs in these executions might have had the lands levied on and sold, yet they were not obliged to do it, and did not do it. On the contrary, the levy, sale and Sheriff's deed were `subject to the homestead.'" If, therefore, the proceedings to collect old debts have been conformed within two years past to the opinion of the Court in Morrison v.Watson, it is manifest that not a single title, derived from sales so made, will be rendered invalid by reason of the fact that the
decision in that case is now overruled only in so far as it declares a previous allotment of a homestead in any case essential to the validity of a sale made to satisfy a debt contracted before April 24th, 1868. Whether the creditor has caused the debtor's land to be sold "subject to the homestead," or has sold the excess only, after allotting the homestead, or where the excess failed to bring a sum sufficient to satisfy the debt, has proceeded further to sell successively fractional parts of the homestead itself, in order to favor the debtor, the purchaser, in any and all of these cases, has taken a title not defeasible because of any irregularity in the manner of selling.
Where the adjudications of a Court, in construing a statute or the organic law, seem to have been wrong originally, but have been recognized as authority for years, and titles to property have been accepted through faith in their stability, such judicial declarations become a rule of property. Lord Mansfield said: "When solemn determinations, acquiesced under, have settled precise cases and become a rule of (110) property, they ought, for the sake of certainty, to be observed as if they had originally formed a part of the text of the statute."Wyndham v. Chetwynd, 1 Burrow, 419; State v. Thompson, 10 La. Ann. Rep., 122; Sedgwick on Statutory and Constitutional Law, 254;Scott v. Kenan, 94 N.C. 296; Grantham v. Kennedy, 91 N.C. 148;Young v. Jackson, 92 N.C. 144; Gilpelke v. Dubuque, 1 Wall., 175.
There is error. The Court should, upon the findings of the jury and the admissions, have allowed plaintiff's motion for judgment in his favor for the possession of the land known as the "Luck Place," and for costs. The judgment of the Court below is reversed, and judgment must be entered in favor of the plaintiff for a writ of possession for said "Luck Place," and rents of that place, and for costs.
Error.