Spence v. Goodwin.

Douglas, J., after stating the facts: The plaintiff contends that the answer of the infant defendants by their guardian ad litem was a waiver of their homestead rights, if any existed; that if the Clerk’s order of sale of February 22, 1900, was erroneous, their only remedy was by appeal; and that in any event the land inherited from their mother should be included as a part of any homestead that may be allowed them, thus pro tanto exonerating the land owned by their *276 father. We do not think that any of such contentions can be sustained. The duty of a guardian ad litem, and in fact the object of his appointment, is to protect the interest of his wards, and he has no power to waive any substantial right, especially when such waiver is entirely without consideration. It is true that his failure to assert their rights may in certain cases estop them from doing so^ but only where such assertion would interfere with the rights of third parties subsequently acquired in good faith. In the case before us the land has not been sold, and no rights whatever have been acquired by 'third parties. Therefore the cases of Dickens v. Long, 109 N. C., 165, and Morrisett v. Ferrebee, 120 N. C., 6, have no present application. The law does not favor the implied waiver of homestead exemptions, especially by infant defendants. The homestead is specifically exempted by the Constitution for reasons of public policy, and even an adult is not permitted to waive his general right of homestead. Where the homestead has not been laid off, he may sell any or all of his lands and thus divest himself of all homestead right in said lands; but even this jus disponendi is controlled by Article X, section 8 of the Constitution, where the homestead has been allotted. A right, around which so many protective provisions have been placed by the organic law, can not be lightly set aside on a mere presumption of waiver. As to the second contention, while it would have been better for the guardian ad litem to have set up the homestead right of the infant defendants in his answer, we do not think that they have lost any right by his failure to do so. As the pleadings were constituted, there appears to have been no ground for appeal, as the allegations of the complaint are admitted to be tine. The error of the guardian ad litem was not in failing to answer the complaint, but in omitting to set up an independent right of exemption existing in the infant *277 defendants. In this state of the caes, we do not think that these defendants are in any worse condition than a judgment debtor; certainly not after their formal claim of exemption. The plaintiff’s third contention is directly opposed to the express letter of the Constitution, of which Article X, section 3 is as follows: “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.” The father, whose debts the administrator is now seeking to pay, had no interest in the lands descended from the mother. Such lands were not liable for his debts, nor could they have been allotted to him as part of his homestead. The homestead exemption is a condition attaching to certain lands belonging to the debtor, Avhich prevents their sale under execution, and after his death this exemption continues during the minority of his children, without regard to any other property they may have acquired from other sources. If the homestead claimant were the widow, the case would be essentially different, as there is a clear distinction between the right of the children as defined in section 3 of Article X, and the right of the widow as provided in section 5 of said Article, Avhich is as follows: “If the owner of a homestead die, leaving a widow but 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.” This provision in the latter section, which is entirely omitted in the former, emphasizes by direct implication the unconditional right of exemption given to the children by section 3. We are of opinion that the infant defendants are entitled to the allotment of the homestead in accordance with the prayer of their petition, and the judgment of the Court below is therefore affirmed. Affirmed.