AVERY, J.

All of the claimants concurred in the admission that James A. Leak, Sr., whose mortgage was executed and recorded before any other lien attached, had the right to receive his entire debt out of the fund. After discharging that claim, together with costs, the referee reported that the residue left would be $1,334.35. The contestants for it are the creditors whose judgments were docketed between the registration of the senior and junior mortgages, the junior mortgagee, James A. Leak, Jr., and the defendant John C. Gay, who claims the whole fund as proceeds of the sale of his homestead, which was allotted before the land was sold. If the defendant Gay had never executed either of the mortgage deeds, the judgment creditors — if it be conceded that they acquired any lien on the homestead at all — could have looked only to the sale of the excess over and above the land allotted for the present satisfaction of any portion of their claims. On the other hand, if he had executed only the junior mortgage, and if we admit that it was subordinate as a lien to the judgments, still the homestead itself could have been subjected for the payment of the debt secured in the (475) mortgage, while it would have been exempt from sale under execution issued on any of the judgments docketed before the mortgage was registered, provided always that it was executed so as to comply with the requirements of the Constitution, Art. X, sec. 8, and that is admitted.

The defendant Gay insists that, it being an undisputed fact that the debts upon which all of the judgments were recovered were contracted after the passage of the act of 1876-77, chapter 253 [The Code, sec. 501 (4)], and before the enactment of the law restoring the lien (chapter 359, Laws 1885), it would follow that a lien was neither created in their favor by docketing them, nor attached upon the subsequent enactment of the statute (of 1885) after they were docketed, and that his homestead right should be exonerated by applying the sum of $334.35, the excess of the fund over $1,000, to the payment of the debt of the junior mortgagee, James A. Leak, Jr., and, after satisfying the residue of his debt, the remainder of the $1,000 — about $800, in round numbers — should be paid over to him in lieu of his homestead. If there is sufficient ground to support this contention, his appeal must be sustained.

It has been held that the homestead interest is one favored by the Constitution, and hence a mortgagor has a right to demand that it be exonerated and discharged from incumbrance by applying the fund realized from the sale of the excess to the payment of the mortgage debt in preference to other claimants who have liens, either upon the land in which the homestead is allotted or upon other lands of the debtor. It must be conceded, no matter when the debts of the judgment creditors were created, that, in a case like the present, the debtor has the right to demand that the junior mortgage shall be satisfied out of the excess of the fund over $1,000, so as to exonerate his homestead. Butler v. Stainback, 87 N.C. 216; Curlee v. Thomas, 74 N.C. 51. But the (476) claim of the junior mortgagee exhausts the excess, as it amounts to more than $500, and leaves $200 of it still unsatisfied.

Were we to concede that when a homestead has been once allotted as prescribed by law, it cannot be reassigned by metes and bounds at the instance of a creditor, the debtor may, nevertheless, sell or incumber that interest by observing the requirements of the Constitution, Art. X, sec. 8. Where, in order to satisfy a mortgage or a debt created before the ratification of the Constitution of 1868, the debtor's homestead is sold, in apportioning the fund arising from such sale the sum of $1,000 of the money must be treated as the homestead of the debtor, notwithstanding the fact that the whole of the debtor's land, including excess and homestead, sold for over $2,000 more than the sum offered by bidders for the excess when exposed separately to sale.

In Wilson v. Patton, 87 N.C. 318, where the whole of the debtor's land was sold under execution issuing upon an old debt, the sum of $1,000 of the proceeds of sale was treated as the homestead, as against new debts contracted since the ratification of the Constitution of 1868.

If we admit that the judgment creditors had a lien upon the land allotted as a homestead, still, in a contest between them and the defendant Gay, he had the option to secure the ultimate payment to them, in such manner as the judge might direct, of the residue left to represent the homestead, after paying the junior mortgagee, and thereby secure to the beneficiaries under the homestead allotment the use of, or interest on, that sum (supposed to be about $800), till the time fixed for the enjoyment of the homestead should have expired, or, if he preferred to do so, he had the right to demand the payment to him of the present value (calculated according to our table) of his life estate in $1,000 (not $800), which value the referee reported to be $390. The defendant Gay chose to take the present value instead of the use of the whole sum, but insisted upon his right to receive the whole residue (477) absolutely and unconditionally.

As we have stated, although the allotment of the homestead may preclude all question as to its real value, yet, when the occupant subjects it, in the mode prescribed by the Constitution, to the lien of a mortgage, and ultimately to sale under its provisions, $1,000 in money, if it sell for more than that sum, must represent and be treated as the homestead itself, and will be so secured and invested that the "homesteader," or his family, can enjoy the interest so long as the right of enjoyment subsists, and his creditors can ultimately divide it according to priorities. But if the debtor elect to take the full present value of the right to enjoy the interest on the fund in future, the effect must be to render necessary an adjustment of rights between him and his creditors immediately upon the exercise of his option, so as to allow them also to receive the present value of their right, by a payment of the residue of the fund representing the homestead (left after deducting its value, ascertained by a calculation based upon life-tables) to them according to priorities, instead of awaiting the determination of the right of enjoyment of the homestead by the beneficiaries, and then dividing the whole fund representing it in the same way.

The disposition of the fund in dispute must depend, then, upon the question whether the act of 1885 operated retrospectively so as to give to the judgment creditors, from its passage, a lien upon the debtor's homestead. The judgment creditors contracted with a view, it is true, to the statute [Code, sec. 501 (4)] which exempted the homestead from the lien of judgments, but both creditor and debtor are presumed to have known that the Legislature might exercise its power, as it did, in passing the act of 1885 (ch. 359) by taking from the latter the privilege of exemption enjoyed by him while it was permitted by the law-making power.

If the amendatory statute (ch. 359, Laws 1885) neither falls (478) within the constitutional inhibition as a law impairing the obligation of a contract, nor interferes with a vested right of the debtor in its application to the contracts made while the act of 1876-77 was in force, then it would follow, if it appeared clearly to have been the legislative intent to restore to preexisting creditors the judgment lien in cases where it had been taken away by the latter act, that the courts must construe the law so as to carry out such manifest purpose, and declare that the homestead of the defendant Gay became subject to the liens of the plaintiffs who had judgments, according to priorities, upon the passage of the amendatory act. A statute may be, according to its express terms, retroactive in its operation, and yet not necessarily void. The Legislature is prohibited from enacting any law in conflict with the Constitution of the United States, or of the State of North Carolina. The restrictive inhibitions of the organic law, State and Federal, that are usually invoked to test the validity of a statute as to any retrospective operation proposed to be given to it, are those against passing laws impairing the obligation of a contract; ex post facto laws are those that provide for taking private property for public use, even without compensation. Satterbee v. Matthewson, 2 Peters, 380. When the effect of a law is to divest the vested right of property, except for the use of the public, and then only after providing for payment of its value, it will be declared void. But it is the creditor alone who has the right to insist that any law passed by the Legislature of a State which will, if enforced, diminish the value of his debt, take away his remedy without providing another equally as efficacious, or destroy his lien, is unconstitutional, because it impairs the obligation of the contract.

Statutory privileges and exemption, as distinguished from those conferred by the Constitution, are granted, subject to the power of the General Assembly to repeal or modify the act that gives them, (479) and all private agreements are entered into, in contemplation of law, with full knowledge that such privileges or exemptions may be recalled when not resting in contract. Cooley's Const. Lim., star p. 383; Bull v. Conroe, 13 Wis. 238; Moore v. Litchford, 35 Tex. 185[ 35 Tex. 185]; Harris v. Glenn, 56 Ga. 94; Sparger v. Campton, 54 Ga. 185; Balton v. Johns, 5 Penn. St., 145; Blakeney v. Bank, 17 Serg. Rawls (Penn.), 64.

The Legislature has the power to enact retroactive laws also, in order to add to the means of enforcing existing contracts. 1 Kent Com., 455.

A creditor has the constitutional right to demand that his lien shall not be destroyed, or his remedy in any other way impaired, but the debtor can claim no vested right of exemption. The privilege is granted to the latter subject to the right of the sovereign to recall it in the way prescribed in the organic law. Harris v. Glenn, supra; Blakeney v. Bank, supra. If, by giving to a statute a retroactive operation, it would divest any right of property that had already accrued, it should be construed to operate prospectively only, if at all. Sedgwick Stat. Con. L. P., 195.

Upon the idea that the public good is to be considered paramount to private interests, and upon the principle that private persons act and contract with reference to the power of the Legislature and the risk of its exercise, it has been frequently held by this and other courts of this country that a retrospective law, making valid unauthorized acts of officers, may be upheld and enforced though the effect of enforcing it be to enable persons to establish rights to property, that they could not otherwise have maintained. Belo v. Commissioners, 76 N.C. 489.

The Code, sec. 501 (4), as amended by Laws 1885 (ch. 359), is as follows: "The property, real and personal, specified in subdivision 3 of this section, and the homestead of any resident of this State, shall not be subject to sale under execution, or other process, except (480) such as may be rendered or issued to secure the payment of obligations contracted for the purchase of the said real estate, or for laborers' or mechanics' liens, for work done and performed for the claimant of said homestead, or for lawful taxes, provided the statute of limitations shall not run against any payment owing by the owner of the homestead or homestead interest during the existence of such homestead or homestead interest, whether the same has been, or shall hereafter be, allowed, assigned and set apart under execution, or otherwise." Code, sec. 3766, is as follows: "Where a part of a statute is amended it is not to be considered as having been repealed and reenacted in the amended form, but the portions which are not altered are to be considered as having been the law since their enactment, and the new proviso as having been enacted at the time of the amendment." By the amendatory act, the words "to the lien of any judgment or decree of any court or" were stricken out between the word "subject" and the words "to sale," and the words following after the word "provided" were added to the section. So much of the section, in its amended form, as precedes the proviso must be considered as enacted with a view to the rule of construction contained in section 3766, and must be "considered as having been the law," since it was enacted at the session of 1876-77. Since it does not interefere [interfere] with vested rights or impair the obligation of any contract, to give the present law the retroactive effect contemplated and required by the provisions of The Code, we must construe it just as though the clause destroying the lien of judgments as to homesteads had never been inserted in the original act, or reenacted as a part of The Code in November, 1883. However widely the text-writers and the courts may differ as to the true rule for testing the question whether a given statute, not objectionable on the ground of unconstitutionality, shall be allowed to operate retroactively, all concur that when there is a plain expression of the legislative intent, the law is to take effect accordingly. S. v. Littlefield, 93 N.C. 614; Potter's (481) Dwarris, 162, note 9; Bishop on Written Law, sec. 82; 1 Minor's Ins., 26. The act of 1885 must be considered just as though section 3766 of The Code had constituted an additional proviso to it, and both must be construed together. S. v. Massey, 103 N.C. 356; ib., 97 N.C. 465. If any further agreement is needed to arrive at the true interpretation to be given to the present law, it will be observed that the proviso to the act which, under section 3766, alone took effect on the day of its enactment, or related to that day, discloses the purpose of the Legislature by suspending the statute as to homesteads already assigned, or to be allotted thereafter, to make the act apply to both. The result reached by the opinion of the Court in Utley v. Jones, 92 N.C. 263, must have been substantially the same as to the disposition of the fund in controversy, if a reference had been made to ascertain the present value of the debtor's life-estate in one thousand dollars. But the court failed to advert to the two facts that there was on the one hand no objection growing out of the constitutionality of the act of 1885 giving it a retrospective effect, and, on the other, there was, in The Code, a mandatory requirement to so construe it. There was, therefore, no error pointed out by the defendant Gay. Judgment in defendant's appeal must be

Affirmed.

Cited: Gulley v. Thurston, 112 N.C. 195; Van Story v. Thornton, ib., 210; Lowe v. Harris, ib., 484; Mayo v. Staton, 137 N.C. 684.

(482)