We think that a proper construction of the judgment rendered in this cause at Spring Term, 1890, will *57give to the feme defendant all that she claims, and that no reforming or correction of that judgment is necessary to secure to her the exemptions that are hers according to the provisions of the Constitution of the State.
The allegations contained in the verified complaint entitled the plaintiff, under the decision of this Court in the case of Flaum v. Wallace, 103 N. C., 296, to an adjudication that the feme defendant was indebted to plaintiff as alleged., and that this indebtedness was a charge on her separate personal estate. The decision of this Court in Farthing v. Shields, 106 N. C., 289, had not then been announced, and it seems from the prayer of the complaint and the judgment itself that the plaintiff’s counsel insisted that, as no answer or demurrer was filed, he was entitled to a judgment declaring the indebtedness a charge on the separate real estate of the feme defendant also, and that the defendant’s counsel consented to this, notwithstanding the fact that, upon the allegations of the complaint,' the plaintiff was not entitled to a charge on the real estate under the law, as afterwards fixed by the decision in Farthing v. Shields, supra, if the coverture of the ferns defendant had been pleaded.
In Flaum v. Wallace, supra, it is decided that, where it is adjudged that the debt is a charge on the separate personal estate of the feme defendant, she “can claim the same exemption from execution as she would be entitled to if she were a feme sole.” The “charge” which is put upon the feme’s separate personal estate by such an adjudication is subordinate to her right to have, free from sale under execution or other final process, the exemption secured to all resident debtors by the Constitution.
In the judgment now under consideration, it is declared that the “said indebtedness is hereby declared a charge on the separate estate of the said feme defendant, described in the complaint”; that is, upon her personal and real estate, for both are described in the complaint.
*58It seems, therefore, that the adjudicated “charge” upon the real estate of the feme defendant, like that against her personal estate, must be subordinate to her homestead fight, unless it appear from the complaint that she has by a proper deed debarred herself from claiming a homestead out of the lands described, or a judgment has been entered against her which estops her from asserting such claim. There is no allegation in the complaint that she has by deed assigned this right, and we think that the judgment, construed in connection with the pleading, as is proper, must be understood to direct the commissioner thereby appointed to sell the land only after there had been allotted to the feme defendant such part thereof as was exempt from sale under execution or other final process. The power to sell was conferred on the commissioner in order that the “charge” on the feme defendant’s real estate, which had been adjudicated in favor of the plaintiff according to the prayer of the complaint, and upon motion of his counsel, might be enforced. That charge, as has been said, is subordinate to the feme defendant’s right to exemption. The authority to sell must be exercised by the commissioner in subordination to that right, for the sale is to be made merely to enforce the adjudged lien or charge.
The sale made and reported should have been set aside, and the commissioner should have been directed to have her homestead allotted to the feme defendant, and then to sell the excess. The portion so allotted to her cannot be sold to satisfy plaintiff’s charge until the homestead estate or right ends. Error.