The agreed case states the following facts: The defendant made the following written agreement with the plаintiffs:
“ Wilson, N. C., July 4th, 1876.
One day after date, for value received, I promise to pay Branch & Co. or order $49.09, with interest from January 1st, 1876, at 8 per cent. I hereby agree that I will not claim any homestead or personal property, exemptions on any final process issued for the collection of this note, and expressly waive the same. Witnеss my hand and seal.
Wiley Tomlinson, [seal.]
Witness, J. E. Earmee.”
The plaintiffs had a judgment on this instrument, issued an execution to the Sheriff’, who sold defendant’s horse thereunder, and plaintiffs purchased it and bring this suit to recover the same. The defendant, at the time of the levy, claimed his personal property exemption which was not allowed him. Did the defendant waive his right to his personal property exemption, is the question presented, and we are of opinion that he did not.
The Constitution, Art. X, exеmpts from sale under execution a homestead for the benefit of every resident of the State, and after the death of the owner thereof, for the wife or children during her widowhood or their minority. It also provides the only mоde of disposing of the same, — namely, by a deed of the husband and wife and her privy examination duly taken.
It also еxempts $500 worth of the personal property of every resident of the State from sale under executiоn, and the Legislature (Bat. Rev. ch. 55, § 10,) has given the wife or children a right to have the same laid off, if he fails to do so before his death, and the Constitution and Legislature *390 both are silent as to the mode of disposing of such exemptеd property.
These provisions manifestly disclose the settled policy of the State to secure a home and the means of support to each •one of its resident citizens, which the Courts must recognize and sustain.
It mаy be assumed that the defendant, as he could sell the exempted property at any time, or mortgage it, сould _waive his right at the time of the levy, and that a sale then made by the Sheriff would pass the absolute title to the purchaser; but an agreement beforehand to do so, being merely an ex-ecutory agreement, in no way affects the title which remains in the defendant until a sale, nor does it prevent him from, disregarding his contract if he chooses to do so, and leave the plaintiffs to their action for damages. It is an agreement with the plaintiffs, аnd not with the Sheriff, whdse duties are prescribed by law.
It is urged that the defendant should be compelled to perform his аgreement specifically. This remedy is not a matter of absolute right in the parties, but is one resting in the sound discretion of the Court.
An agreement even for the' purchase of land must be certain, just and fair in all its parts, impartial for the plaintiff and not oppressive to the defendant, before the aid of a Court of Equity can be invoked tо enforce it; but when the contract is fit for the intervention of the Court, a decree of performance will follow as a matter of course. Whereas in the case of a contract for the sale of pеrsonalty, it will not be decreed specifically except in certain cases for peculiar reаsons. This is the settled rule and it does not rest upon any distinction between real and personal property, .but uрon the ground, that in the former case, damage's at law will not afford an adequate remedy, because lаnds have a peculiar and special value, some being more valuable and more convenient to the purchaser than others. Whereas in the latter *391 •case, damages calculated at the market value afford a remedy as full and complete as the delivery of the articles to the purchaser would be, because like articles can be easily pur■chased with the money recovered. One horse or оne ton of iron has no peculiar value over another of the same kind.
In some eases, however, the Court will enforce contracts of the latter kind, as in the case of an heir-loom, a favorite picture, a portrait or other family relics, in favor of members of the family; because these articles have sоmething above their market value, called
pretium. affectionis.
In the case of
Williams
v. Howard,
The same order was made in
Austin
v.
Gillaspie,
It will be observed that in our case there is'no description of property, no agreement to sell or make title to anything; so that specific performance is out of the сase.
The agreement is to waive a right in contravention of State policy, which agreement this Court cаnnot undertake to enforce. ¥e find that the same conclusion in regard to the supposed waiver has been adopted in Kentucky. Maxley v. Ragan, 10 Bush., 156.
There is error.
Per CubiaM. Judgment reversed.