(after stating the case.) Thos. K. Welch and J. R. Welch were formerly tenants, in common of the land mentioned in the petition under deed from W. IT. Thomas and Bartlett Morgan. The plaintiff claims to have title to the interest of Jno. R. Welch in said land-, derived by purchase and deed under an execution sale, and the defendant claims title to the whole, alleging title to the share or interest of Jno. R. Welch by purchase and deed from him.
The defendant insists that the deeds from the Sheriff to the plaintiff, George K. 'Welch, are void because the sale was made by the Sheriff under execution without having allotted the homestead of the debtor in the execution, and the first exception is to the admission of the return of the appraisers as evidence to show the allotment of the homestead.
Section 504 of The Code requires the return of the appraisers to be registered in the office of Register of Deeds, and this was done, but the defendant says it was without authority, and proposed to show by the Sheriff that at the time of the appraisement Jno. R. Welch notified him and the appraisers that the land thfey were about to assign as a homestead was the dower of his wife, and that he had no interest in it.
The Code, chapter 10, provides for the allotment of homesteads, and the duties of the Sheriff in relation thereto are defined, and section 516 subjects him to indictment and to liability on his official bond for selling land in which execu*570tion debtors may be entitled to homesteads without a compliance with the requirements of the statute.
Section 519 provides the remedy for a judgment creditor or debtor who may be for any cause dissatisfied: “If the * * * * * judgment debtor or other person entitled to homestead * * * * shall be dissatisfied with the valuation and allotment of the appraisers or assessors, he, within ten days thereafter * * * * and before sale under execution of the excess, may notify the adverse party and the Sheriff having the execution in hand, and file with the Clerk of the Superior Court of the county where the said allotment shall be made a transcript of the return of the appraisers or assessors, which they or the Sheriff shall allow to be made on demand, together with his objections in writing to said return, and thereupon the Clerk shall put the same on the civil issue docket of said Superior Court for trial at the next term thereof * * * * and the Sheriff shall not sell the excess until after the determination of said action.”
When the homestead is allotted and no exception taken thereto in the mode prescribed by the statute, the Sheriff may sell the excess and the purchaser has the right to assume a “determination” of all dissatisfaction with the “allotment,”.and neither the judgment debtor nor any one claiming under him can be heard to attack it collaterally. This is so clearly and fully discussed in Burton v. Spiers, 87 N. C., 87, that we deem it only necessary to refer to that case. See also Spoon v. Reid, 78 N. C., 244.
The several exceptions to the exclusion, upon objection, of the evidence offered and questions asked by the defendant, are sustained for the same reason. The purpose was to attack collaterally the homestead allotment, and, as we have seen, this cannot be done. The refusal to grant the first instruction asked was proper, because it was not warranted by the evidence. It appears that the Sheriff did not sell “ without laying off the homestead of the judgment debtor.”
*571Neither was there error in refusing the second instruction asked. The homestead was allotted before sale under execution; there was no exception or appeal. The homestead was allotted to Jno. R. Welch and Sally Welch, who were husband and wife.
The return of the Sheriff shows that the homestead of J. R. Welch was “laid off and set apart,” and the excess was-sold.
Affirmed.