¶1 By the levies of the executions on 27th February,, 1868, the plaintiff in those executions acquired a specific lien upon the lands levied on, the same as those in dispute, which barred the defendant’s right to a homestead under the Corieti-tution, which did not go into effect until 1st July, 1868. McKethan v. Terry, 64 N. C. Rep., 25.
¶2 But those levies were abandoned and lost their force by suing out new executions 1st August, 1868, under which new levies were made and subsequently the sale to plaintiff, on 7th March, 1870. These levies and sale were subsequent to the homestead law. So that at the time the homestead -law went into operation the plaintiff in the executions, having abandoned his levies, had only a judgment, which was not such a lien as to have the defendant’s homestead.
¶3 If the defendant’s homestead had, been laid off as it ought to have been, and there had been an excess of land, such excess would have been liable to sale. And so now if, after laying off the homestead, there be an excess, the plaintiff will be entitled to the excess. And if there be no excess it may be that the plaintiff will have his remedy against the plaintiff in the exe- *216 cation under which the land was sold, under Statute Rev. 0., chap. 45, sec. 27, which gives a remedy to purchaser at execution sale, where the title to the property turns out to be defective. But this is not now before us.
¶4 There is error. This will be certified and the cause remanded that the parties may proceed as they may be advised.
¶5 Per Cueiam. Judgment accordingly.