Tbe appeals bere present two questions for decision: (1) Does tbe payment of tbe judgment under wbieb a debtor’s homestead is allotted extinguish tbe homestead and revive tbe running of tbe statute of limitations against judgments then of record or thereafter docketed, and (2) did tbe court err in taxing a ratable portion of tbe costs incurred in this proceeding against tbe fund derived from tbe sale of tbe homestead real estate ?
Tbe right to a homestead is guaranteed by tbe Constitution. N. C. Const., Art. X, sec. 2. Insolvency or tbe need for protection against sale is not a prerequisite to its allotment. 'W'bile the homestead may have real beneficial value only when tbe owner is in debt and pressed by final process of tbe court, it is ever operative. A resident occupant of real property, though free from debt and possessed of great wealth, may, if be so elects, have it set apart to him on bis own voluntary petition. Gr.S. 1-386.
When a sheriff is seeking to collect a judgment under execution issued to him, be must, before levying upon tbe real property of tbe debtor, proceed to have tbe debtor’s homestead allotted. G.S. 1-311. But this does not create tbe homestead right. Title thereto is vested in tbe owner by tbe Constitution and no allotment by tbe sheriff is necessary to create tbe right or vest 'the title.
No sale can be bad until tbe homestead is first ascertained and set apart to tbe judgment debtor. Tbe .allotment by tbe sheriff is only for tbe purpose of ascertaining whether there be any excess of property over tbe homestead which is subject to sale under execution. Lambert v. Kinnery, 74 N.C. 348; Gheen v. Summey, 80 N.C. 188; Littlejohn v. Egerton, 77 N.C. 379. Tbe issuance of tbe execution and tbe levy thereunder merely set in motion the machinery through which the homestead is valued and set apart to the owner.
Thus it appears that the homestead, whether allotted on the voluntary petition of the owner or by the sheriff under execution, is not the offspring of and does not draw its life blood from a judgment debt. It stems from the Constitution and “it is not the condition of the homesteader that creates the homestead condition, but the force of the Constitution, attaching to and acting upon the land.” Thomas v. Fulford, 117 N.C. 667.
When the homestead is once allotted, the only way the property embraced therein may lose its homestead character is by death, abandon*343ment, or alienation. 40 C.J.S. 442; Posey v. Commercial Nat. Bank, 55 S.W. 2d 515; Hillsborough Inv. Co. v. Wilcox, 13 So. 2d 448; Nelson v. Hainlin, 104 So. 589; Fidelity & Casualty Co. of N. Y. v. Magwood, 145 So. 67.
Once acquired it is presumed to continue. So strong is this presumption that the majority of courts hold that where the homestead character has attached to property, it can be lost only by waiver or abandonment by the owner. In re McClain’s Estate, 262 N.W. 666; City Nat. Bank v. Johnson, 96 S.W. 2d 482; De Haven & Son Hardware Co. v. Schultz, 269 P. 778.
“If . . . the homestead has once been laid off at the instance of creditors, though the debts may be discharged, the restriction remains . . .” Hughes v. Hodges, 102 N.C. 236; Tucker v. Tucker, 103 N.C. 170.
“While the homestead as allowed lasts, it remains ‘exempt from sale under execution or other final process obtained on any debt;’ and it lasts during the life of the owner thereof; and, after his death, during the minority of his children, or any one of them, and the widowhood of his widow, unless she be the owner of a homestead in her own right.” Jones v. Britton, 102 N.C. 166.
The purpose of the homestead provision of the Constitution is to surround the family home with certain protection against the demands of urgent creditors. De Haven & Son Hardware Co. v. Schultz, supra; Gee v. Moore, 14 Cal. 472; 2 Tiffany, Real Property, sec. 577. It carries the right of occupancy free from levy or sale under execution so long as the claimant may live unless alienated or abandoned. It is the place of residence which the homesteader may improve and make comfortable and where his family may be sheltered and live, beyond the reach of those financial misfortunes which even the most prudent and sagacious cannot always avoid.
To say that it is defeated and its protection destroyed merely by the payment of the judgment under which it was allotted is to overlook the very nature and purpose of the right. Gardner v. McConnaughey, 157 N.C. 481, 73 S.E. 125.
It is suggested that if the payment of the judgment did not vacate the homestead allotted then the homesteader loses the protection it is intended to afford; that if vacated, the running of the statute of limitations would no longer be tolled, but if continued in force the judgments are kept alive to the detriment of the homesteader. The answer here is the homestead allotment protected the debtor’s home against execution sale under any one of the numerous judgments then of record — the end it was designed to accomplish.
If a certified copy of the report of the appraisers was not registered in the office of the register of deeds of the county, as now contended, this was *344an irregularity insufficient in force and effect to invalidate tbe allotment. Bevan v. Ellis, 121 N.C. 224; Crouch v. Crouch, 160 N.C. 447, 76 S.E. 482; Carstarphen v. Carstarphen, 193 N.C. 541, 137 S.E. 658.
The object of the notice by registration in the office of the register of deeds “is not to inform the creditors of the homesteader that the homestead, after it is allotted, cannot be sold under execution for his debts, because the creditors are presumed to know that that was so even before the homestead is allotted.” It is to give notice to third parties having transactions with the debtor respecting the homestead property and is indispensable only when the allotment is made on the petition of the homesteader. Bevan v. Ellis, supra; Crouch v. Crouch, supra.
The soundness of these decisions may not be attacked at this late date. They created a rule of property which governed the application of the homestead statute as to all transactions affecting the homestead so long as they were not overruled or superseded by Act of the Legislature. (In this connection note Chap. 912, Session Laws, 1945, which now makes the registration of the return of the appraisers a prerequisite to its validity, at least against all third parties.)
A money judgment is a bipronged, dual-natured instrument: (1) It is the evidence of a personal debt of the judgment debtor payable out of any assets he may possess, and (2) it is a lien against the real estate of the debtor as security for the payment of the debt.
"When a homestead is allotted it serves to suspend the running of the statute of limitations against the judgment as a lien upon the property embraced in the homestead. Cleve v. Adams, 222 N.C. 211, 22 S.E. 2d 567. It does not toll the statute in respect to the debt as such or the personal liability of the debtor for the payment thereof. G.S. 1-369, 370. McDonald v. Dickson, 85 N.C. 248; Kirkwood v. Peden, 173 N.C. 460, 92 S.E. 264; Hicks v. Wooten, 175 N.C. 597, 96 S.E. 107.
If the judgment creditor wishes to share in the distribution of the personal estate of his deceased judgment debtor, G.S. 28-105, et seq., and to protect himself against the running of the statute of limitations as against the debt, G.S. 1-22, he must file his claim with the personal representative of the deceased. Daniel v. Laughlin, 87 N.C. 433; Barnes v. Fort, 169 N.C. 431, 86 S.E. 340; Rodman v. Stillman, 220 N.C. 361, 17 S.E. 2d 336. While the amount due is adjudicated, it is nonetheless a provable debt. Moore v. Jones, 226 N.C. 149, 36 S.E. 2d 920.
Ordinarily the judgment creditor must enforce his rights against the estate of his deceased debtor through the personal representative. Moore v. Jones, supra. Hence it is proper, if not mandatory, to give notice in all instances. However, as the estate here is insolvent and those judgment creditors who have not filed notice with the plaintiff or his predecessor can only assert their claims against the homestead property, that question *345is not presented for decision. See, however, Stonestreet v. Frost, 123 N.C. 640, and Rodman v. Stillman, supra.
The referee correctly concluded that the fund in the bands of the plaintiff derived from personal assets of deceased should first be applied toward the payment of the costs of administration, including attorneys’ fees. The court below erred in sustaining the exception thereto and directing that such costs should be paid in part out of the fund derived from the sale of real property.
This proceeding is a necessary incident to the proper administration of the estate of the deceased and the costs of administration are payable out of the personal assets. When resort is had to land to make assets, the proceeds of the sale retain the quality of real property to the extent necessary to discharge all liens thereon. Only the surplus, if any, becomes personal property and is payable to the personal representative as personal assets of the estate. Moore v. Jones, supra. To say that this fund must pay a part of the costs of administration is but to hold that it is, pro tanto, personal property. This is contra the controlling rule and would necessarily deprive the judgment creditors of a part of their security which must, under the law, be applied exclusively to the payment of their liens to the extent of the value of the security. G.S. 28-105 (5). Matthews v. Peterson, 150 N.C. 134, 63 S.E. 721. The. fund is set apart to their use. It may not be consumed, in whole or in part, in the payment of the costs of administration.
Lightner v. Boone, 222 N.C. 421, 23 S.E. 2d 313, is factually distinguishable. There a trust fund — a personal asset — was the subject of controversy.
What is here said does not apply to the referee’s fee which is taxable in the discretion of the court. It is so expressly provided by statute. G.S. 6-21 (6).
The amendatory judgment entered 24 March 1948, in so far as it relates to the taxation of costs other than the referee’s fee must be vacated. Both judgments as here modified are affirmed.
Modified and affirmed.