This action was brought to recover possession of certain tracts of land from defendant Bryant Smith, to whom they were attempted to be conveyed by J. C. L. Harris, commissioner. Tbe land was originally tbe property of A. B. Emery. Tbe findings of tbe jury (not excepted to) confirm tbe title of bis son, A. Yance Emery, and destroy tbe title of Bryant Smith.
It is admitted in tbe record that Yance Emery died intestate, leaving no - child, and that tbe three feme plaintiffs named in *171tbe judgment are his. heirs at law and next of kin, and that the defendant Mollie is his widow, and that defendant Bryant Smith is in possession of the land.
Plaintiffs by excepting to that part of the fifth issue, and ■also to the judgment exempting the homestead of Mollie Morris from their recovery, present the question on this appeal as to whether under the pleadings, evidence, and the form in which this action is brought, his Honor- erred in adjudging that Mollie Morris is entitled to a homestead in the lands in controversy as against these plaintiffs. The exception is well taken.
1. As contended by the learned counsel for plaintiffs, there is no such claim’ or plea of homestead set up in the answer of either Bryant Smith or Mollie Morris.
It has been uniformly held by this Court that in an action to recover land, if the defendant desires to claim a homestead therein he should assert his rights by proper averment in the answer. Wilson v. Taylor, 98 N. C., 276. In the opinion the Court says: “No issue in regard to the homestead was raised by the pleadings, and there was no question in relation thereto, as appears from the record, till after the verdict. The issues are raised by the pleadings,” citing Hinson v. Adrian, 92 N. C., 121. The Court further says: “In all cases cited by counsel for the defendants the claim to the homestead was presented by the pleadings.” This case has been cited and approved in a number of cases given in the annotated edition of our reports, and is directly in point and determinative of this appeal.
2. There is not only a, lack of allegata,, but also of probata supporting the claim of homestead, and it has been repeatedly held that both are essential.
There is not a scintilla of evidence in the record that Vance Emery owed any debts that his personal estate was insufficient to pay. The deed from J. C. L. Harris, commissioner, to Bryant Smith, who was the administrator of Vance Emery, refers to a proceeding to make real estate assets instituted by said administrator against Mollie F. Morris, formerly Mollie F. Emery; but it is expressly disclosed that these plaintiffs, the only heirs at law of Vance Emery, were not parties to it. In *172referring to that proceeding in his charge, his Honor declared it to be a proceeding for partition, in these words: “We have had a lot of fuss about this little piece of land. They told us that Smith had bought the laud at his own sale, alleging fraud and everything; but on examination of the papers I find he did not buy any land at all; so that his part is eliminated. The proceeding for partition to sell the land made the widow a party, and these children were not parties, and this deed did not affect them at all. The title is in them, if A. Y. Emery had title to it.”
Smith, the administrator of Yance Emery, was examined as a witness in his own behalf and failed to testify to any unpaid and outstanding indebtedness against the estate that, the personal property was insufficient to pay.
It is stated in the record after case on appeal that “the proceedings allotting the whole land to the widow of A. Y. Emery were introduced. These proceedings are not in the record, and it does not appear whether they were ex parte or wrere instituted on behalf of creditors in accordance with the statute. A widow is not entitled to homestead against the heirs at law when there are no creditors, but only to dower. The language of the Constitution declares that “if the owner of a homestead die, leaving a widow but no children, the same shall be exempt from the debts of her husband,” etc. Watts v. Leggett, 66 N. C., 197. It must be borne in mind that this is not a proceeding to sell the land to pay debts, but an action by the heirs at law to recover possession of it from the defendant Bryant Smith, who admits that he is in possession.
3. There is another reason why Mollie F. Morris is not entitled to a homestead in this land, and that is because she and her husband, by deed dated 17 April, 1901, duly conveyed “the homestead right of the said Mollie E. Morris in the aforesaid eight tracts of land as heretofore laid off and allotted to her as the wife of A. Y. Emery to the said Bryant Smith, his heirs and assigns, forever.”
It appears from Exhibit B attached to the case on appeal that this was overlooked by the learned judge, and had it been *173called to bis attention tbat be would bave omitted from tbe judgment tbe words “subject to tbe homestead of tbe widow of A. V. Emery.”
4. Bryant Smith- cannot claim tbe homestead of Mollie Morris for himself, because be set up no such claim in bis answer, and put bis whole title in issue, and tbat was decided adversely to him under tbe second issue. It was bis duty to set up every claim be bad to tbe land, and be is precluded as to those be might bave set up, but did not. Wagon Co. v. Byrd, 119 N. C., 461.
Again, it is contended tbat when Mrs. Monis conveyed her homestead right in tbe land she terminated tbe homestead exemption, as á homestead is now considered a determinable exemption, a mere cessat executio, and not an estate in land. It is not necessary to decide tbe point, but in view of recent decisions of this Court it may be tbat Bryant Smith as assignee of Mrs. Morris cannot set up tbe claim of homestead exemption even as against creditors, much less against tbe heirs at law. Joyner v. Sugg, 132 N. C., 580. See note, section 11, page 378, Connor and Cheshire on Constitution.
Let tbe judgment of the Superior Court be modified in accordance with this opinion by striking out tbe words “subject to tbe homestead interest of Mollie Morris, tbe widow of A. Y. Emery during its continuance,” and as so modified tbe judgment is affirmed.
Tbe appellees, tbe defendants, will be taxed with costs of this appeal.
Modified and affirmed.
Hoke, J., concurs in result.