(after stating the facts as above). There is no error in so much of the judgment as awards full payment of the *263 mortgage debt from the fund. The defendant having no wife, so far as the record discloses, whose concurrence would have been necessary in passing title free from the incumbering homestead under the constitution, as sole owner, could and by his deed did convey the full estate vested in him to the mortgagees, and, of course, the debt thereon secured was entitled to payment from the proceeds of the sale.

No lien was created by docketing the judgments, as we must infer from the times at which they bear interest, they were all rendered on contracts entered into subsequent to May 1st, 1877.

As to such debts the act of 1876-’77, chap. 253, declares that 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 the lien of any judgment or decree of any court, or to sale under execution, or other process thereon, except such as may be rendered or issued to secure the payment of obligations contracted for the purchase of said real estate, or for laborers’ or mechanics’ liens for work done and performed for the claimant of said homestead, or for lawful taxes. Code, see. 501, par. 4.

So the law is declai’ed in Markham v. Hicks, 90 N. C., 204.

As there was no lien formed by the docketed judgments, the portion of the moneys left, after discharging the mortgage debt, like moneys raised under an execution sale in excess of what was required to satisfy the judgment, belongs to the defendant. The order of reference was uncalled for and erroneous, and the residue should have been directed to be paid to the debtor whose land has been sold.

If it were not that a final judgment was the proper one to be rendered, disposing of the entire; fund, we should be constrained to dismiss the appeal as prematurely taken, inasmuch as fragmentary appeals are not entertained, as ruled in Arrington v. Arrington, 91 N. C., 301, and the cases cited in the opinion.

Judgment will be hero entered according to this opinion.