The opinion of the Court was delivered by
Mr. Chief Justice Simpson.
This is a contest over a tract of land lying in Richland County, containing some 200 acres, claimed by the plaintiff appellant as a purchaser at sheriff’s sale, and resisted by the defendant respondent on the ground of homestead.
It appears that in 1874 the real estate of respondent, situate in said county, embracing 902 acres, was levied upon by the Sheriff by virtue of sundry fi-fas then in his office. The respondent claimed a homestead, and the Sheriff caused to be assigned to him the 200 acres now in dispute. Upon the interposition of this claim of homestead the sale was postponed in fact, it seems that an injunction was obtained restraining the [369]*369sale. Some time after this, to wit, on February 10th, 1878, two of the judgment creditors assigned their judgments to John Agnew, Jr., who, claiming that these judgments were founded on debts contracted before the adoption of the Constitution of 1868, and therefore under a recent decision not subject to the Homestead provision therein, ordered the Sheriff to proceed to execute. The Sheriff thereupon readvertised and sold, the appellant being the purchaser at the bid of $225. At this sale the attorney of respondent gave notice of the assignment of homestead as above, and forbade the sale.
This action was then commenced by the appellant, to wit, on September 30, 1878. At the trial a verdict was rendered for the appellant, but upon appeal to this Court, the judgment was reversed and the case remanded. (15 S. C. 36.) This reversal was upon the ground that the Sheriff had no authority to sell the homestead under the two judgments by virtue of which he had acted, because as to the first, to wit, the Amie Weston judgment, it was a nullity, having been rendered by the Clerk of the Court after the Act of 1873 ; and as to the other, the James P. Adams judgment, the debt was contracted after the adoption of the Constitution of 1868 — the Court holding that neither of these judgments had liens upon the land. The Court also held that that there was no fatal defect in the assignment of the homestead; that the act had been substantially complied with, and as to the two judgments of appellant the assignment was sufficient.
Upon the second trial, from which this appeal comes, the same testimony was offered as upon the first, with the addition, on the part of the plaintiff, of the introduction of a judgment and fi-fa in favor of F. W. McMaster for $4,727.25, dated May 11, 1874. This judgment was junior to the judgments under which the Sheriff acted, but it was founded on a debt admitted to have been contracted before the homestead provisions. This judgment raises the important question involved in the appeal, to wit: Hid it legalize the sale by the Sheriff of defendant’s homestead? The appellant’s attorney requested the Judge to charge that it did, “provided the jury found as a fact that the cause of action therein arose prior to the Con[370]*370stitution of 1868, and the executions and levies were as stated in the [formei1] brief for the Supreme Court.” His Honor Judge Pressley charged as requested, “ provided McMaster had not abandoned his claim, or waived his right, and had proceeded under his execution.”
The request of appellant was no doubt founded upon Bull v. Rowe, 13 S. C. 360. In that case this Court held, after a full and exhaustive examination of the law of homestead in this State, that the Constitution of 1868 upon this subject must be read as if ho part applied to debts contracted befoi’e its adoption; that a debtor could not claim a homestead as to such debts by virtue of such constitutional provision, or by any subsequent acts passed thereunder1. Previous to Bull v. Rowe, it had been decided in this State that an assignment of homestead, whei’e it had been retuxmed for i’ecord, was invalid as to old debts. Choice v. Charles, 7 S. C. 171; Ryan v. Pettigrew, 7 S. C. 146. But Bull v. Rowe went still further, and held that the whole proceeding was void, and that no homestead as suchj^w se could be allowed in such cases, because there was no constitutional provision or act (under the principle held in Gunn v. Barry, 15 Wall. 610; Cochran v. Darcy, 5 S. C. 125; ex-parte Hewett, 5 S. C. 409), which exempted any species of property from levy and sale as to such debts — quoting from Thompson, § 230, as follows: “It is scarcely necessary to say as a general rule, that a dedication of homestead in whatever form, does not have the effect of withdrawing it from liability on account of any pre-existing debt, lien, conveyances, or charges which otherwise would have bound the landalso § 29 : “ Every debt created by contx-act prior to the passage of any homestead or exemption law is privileged from the operation of such law. To this rule, as the writer understands it, the Court can now admit no exception.”
In the case of Newton v. Sumning, 59 Ga. 399, it is said: “ Those whose claims outrank the constitution may stay out of the Ordinary’s Court, and nothing there done will be in their way.” Under this principle, there can be no such thing as a homestead per se assigned against a debt pre-existing the Con[371]*371stitution of 1868, by virtue of any constitutional provision or act of tbe General Assembly passed thereunder proprio vigore.
The next question is, was the land in dispute sold by the Sheriff under the McMaster judgment ? Under Bull v. Rowe and the other cases cited, the assignment of the homestead in 1874 was a nullity as to McMaster’s judgment, it being founded on a pre-existing debt. But the question now is, has that judgment been enforced, and was the land sold thereunder by the Sheriff at the sale in 1878? The land was advertised for sale in 1878 under but two executions — the Amie Weston and James P. Adams executions. The deed of the Sheriff recites the Amie Weston execution alone, but the advertisement recites them both. At the time'of the levy and the sale, the McMaster execution was in the office of the Sheriff with active energy. Now, with these facts above considered could the sale be legally referred to the McMaster execution ? Such was the decision in the cases of Gist v. McJunkin et al. 1 McM. 342; McKnight v. Gordon, 13 Rich. Eq. 246, and Vance v. Red, 2 Spears, 90.
In Gordon v. McKnight Chancellor Inglis said for the Court: “ But there were in the Sheriff’s hands at the time of the levy and sale sundry other executions against the mortgagor. The Sheriff’s official acts in the levy and sale, and the deed made in pursuance thereof will not be made void by his referring them to a power and authority which he has not, if they can be supported by any power and authority which he in fact has. To such actual power and authority the law will refer them,” citing Gist v. McJunkin, supra. In Vance v. Red, supra, the property was sold under a fi-fa which in fact had no lien; yet the sale was referred to an unsatisfied fi-fa in the hands of the Sheriff, although “Wait orders” had been indorsed thereon.
So that, the law in our State seems to be, that where the Sheriff has in his office an unsatisfied fifa having lien, his sale of such property will be valid, although the levy and advertisement originate as matter of fact from a
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The opinion of the Court was delivered by
Mr. Chief Justice Simpson.
This is a contest over a tract of land lying in Richland County, containing some 200 acres, claimed by the plaintiff appellant as a purchaser at sheriff’s sale, and resisted by the defendant respondent on the ground of homestead.
It appears that in 1874 the real estate of respondent, situate in said county, embracing 902 acres, was levied upon by the Sheriff by virtue of sundry fi-fas then in his office. The respondent claimed a homestead, and the Sheriff caused to be assigned to him the 200 acres now in dispute. Upon the interposition of this claim of homestead the sale was postponed in fact, it seems that an injunction was obtained restraining the [369]*369sale. Some time after this, to wit, on February 10th, 1878, two of the judgment creditors assigned their judgments to John Agnew, Jr., who, claiming that these judgments were founded on debts contracted before the adoption of the Constitution of 1868, and therefore under a recent decision not subject to the Homestead provision therein, ordered the Sheriff to proceed to execute. The Sheriff thereupon readvertised and sold, the appellant being the purchaser at the bid of $225. At this sale the attorney of respondent gave notice of the assignment of homestead as above, and forbade the sale.
This action was then commenced by the appellant, to wit, on September 30, 1878. At the trial a verdict was rendered for the appellant, but upon appeal to this Court, the judgment was reversed and the case remanded. (15 S. C. 36.) This reversal was upon the ground that the Sheriff had no authority to sell the homestead under the two judgments by virtue of which he had acted, because as to the first, to wit, the Amie Weston judgment, it was a nullity, having been rendered by the Clerk of the Court after the Act of 1873 ; and as to the other, the James P. Adams judgment, the debt was contracted after the adoption of the Constitution of 1868 — the Court holding that neither of these judgments had liens upon the land. The Court also held that that there was no fatal defect in the assignment of the homestead; that the act had been substantially complied with, and as to the two judgments of appellant the assignment was sufficient.
Upon the second trial, from which this appeal comes, the same testimony was offered as upon the first, with the addition, on the part of the plaintiff, of the introduction of a judgment and fi-fa in favor of F. W. McMaster for $4,727.25, dated May 11, 1874. This judgment was junior to the judgments under which the Sheriff acted, but it was founded on a debt admitted to have been contracted before the homestead provisions. This judgment raises the important question involved in the appeal, to wit: Hid it legalize the sale by the Sheriff of defendant’s homestead? The appellant’s attorney requested the Judge to charge that it did, “provided the jury found as a fact that the cause of action therein arose prior to the Con[370]*370stitution of 1868, and the executions and levies were as stated in the [formei1] brief for the Supreme Court.” His Honor Judge Pressley charged as requested, “ provided McMaster had not abandoned his claim, or waived his right, and had proceeded under his execution.”
The request of appellant was no doubt founded upon Bull v. Rowe, 13 S. C. 360. In that case this Court held, after a full and exhaustive examination of the law of homestead in this State, that the Constitution of 1868 upon this subject must be read as if ho part applied to debts contracted befoi’e its adoption; that a debtor could not claim a homestead as to such debts by virtue of such constitutional provision, or by any subsequent acts passed thereunder1. Previous to Bull v. Rowe, it had been decided in this State that an assignment of homestead, whei’e it had been retuxmed for i’ecord, was invalid as to old debts. Choice v. Charles, 7 S. C. 171; Ryan v. Pettigrew, 7 S. C. 146. But Bull v. Rowe went still further, and held that the whole proceeding was void, and that no homestead as suchj^w se could be allowed in such cases, because there was no constitutional provision or act (under the principle held in Gunn v. Barry, 15 Wall. 610; Cochran v. Darcy, 5 S. C. 125; ex-parte Hewett, 5 S. C. 409), which exempted any species of property from levy and sale as to such debts — quoting from Thompson, § 230, as follows: “It is scarcely necessary to say as a general rule, that a dedication of homestead in whatever form, does not have the effect of withdrawing it from liability on account of any pre-existing debt, lien, conveyances, or charges which otherwise would have bound the landalso § 29 : “ Every debt created by contx-act prior to the passage of any homestead or exemption law is privileged from the operation of such law. To this rule, as the writer understands it, the Court can now admit no exception.”
In the case of Newton v. Sumning, 59 Ga. 399, it is said: “ Those whose claims outrank the constitution may stay out of the Ordinary’s Court, and nothing there done will be in their way.” Under this principle, there can be no such thing as a homestead per se assigned against a debt pre-existing the Con[371]*371stitution of 1868, by virtue of any constitutional provision or act of tbe General Assembly passed thereunder proprio vigore.
The next question is, was the land in dispute sold by the Sheriff under the McMaster judgment ? Under Bull v. Rowe and the other cases cited, the assignment of the homestead in 1874 was a nullity as to McMaster’s judgment, it being founded on a pre-existing debt. But the question now is, has that judgment been enforced, and was the land sold thereunder by the Sheriff at the sale in 1878? The land was advertised for sale in 1878 under but two executions — the Amie Weston and James P. Adams executions. The deed of the Sheriff recites the Amie Weston execution alone, but the advertisement recites them both. At the time'of the levy and the sale, the McMaster execution was in the office of the Sheriff with active energy. Now, with these facts above considered could the sale be legally referred to the McMaster execution ? Such was the decision in the cases of Gist v. McJunkin et al. 1 McM. 342; McKnight v. Gordon, 13 Rich. Eq. 246, and Vance v. Red, 2 Spears, 90.
In Gordon v. McKnight Chancellor Inglis said for the Court: “ But there were in the Sheriff’s hands at the time of the levy and sale sundry other executions against the mortgagor. The Sheriff’s official acts in the levy and sale, and the deed made in pursuance thereof will not be made void by his referring them to a power and authority which he has not, if they can be supported by any power and authority which he in fact has. To such actual power and authority the law will refer them,” citing Gist v. McJunkin, supra. In Vance v. Red, supra, the property was sold under a fi-fa which in fact had no lien; yet the sale was referred to an unsatisfied fi-fa in the hands of the Sheriff, although “Wait orders” had been indorsed thereon.
So that, the law in our State seems to be, that where the Sheriff has in his office an unsatisfied fifa having lien, his sale of such property will be valid, although the levy and advertisement originate as matter of fact from a fi-fa having no such lien. In Vance v. Red the property had been sold by the [372]*372debtor before the fi-fa under which it was levied had been entered in the Sheriff’s office, and therefore free from lien, yet the sale was referred to an older fifa which did have lien, although “Wait orders” had been indorsed on said older fifa (See Greenwood v. Naylor, 1 McC. 414, and Snipes v. Sheriff of Charleston, 1 Bay. 295.) This principle, however, was not denied by the Circuit Judge; he conceded it to be the law, but charged that it did not apply in this case. “ If McMaster had waived his rights, or had not proceeded under his fifa” and he left it to the jury inferential!y, if not directly to determine whether this was so. The real question then is, Did the Judge err in attaching these qualifications to the general jmnciple ?
There is no doubt as to the proposition that a party may waive almost any right. Tie may not only waive a right, but he may affirm a nullity. He may do this not only expressly by words, but by conduct. As was said by McGowan, A. J., in Bull v. Rowe, supra: “ The doctrine of estoppel applies to constitutional as well as other rights, and to proceedings absolutely void as well as those merely voidable. So that the first qualification which the Judge attached to the general rule, as an abstract proposition, was not erroneous. As applied to this case, however, we think it needed some explanation. “If estopptel by conduct is relied on, it must appear that it induced action, the disavowal of which would be inequitable, and which, therefore, the party who holds out the inducements is estopped from disavowing.” Bigelow on Estoppel, 480; Bull v. Rowe, supra. There is no estoppel without fault to the injury of another. Ibid. These qualifications, we think, might and should have been attached to the proposition charged by the Judge, that the principle contended for by appellant would be allowed “ if McMaster had not abandoned his claim or waived his right,” especially as this condition was superadded to the request, and there was no evidence in the case of an express waiver by McMaster of his rights.
But the Judge further charged, in effect, that even though McMaster had not abandoned his claim or waived his rights, yet the sale by the Sheriff could not be referred tp his fi-fa unless it appeared that the Sheriff had proceeded under it. [373]*373This, we think, was error. The cases cited above hold that where there is a valid fi-fa in the office having lien upon the property, whether the party plaintiff or the Sheriff has actually proceeded under it or not, the sale may be referred to it and such sale will be valid. Vance v. Red, supra.
We see nothing in the agreement as to the admission of testimony which excludes the introduction of the McMaster' judgment. Nor do we find any error in excluding the record in the cases of Crawford & Sons, John Agnew & Son, and John Agnew, Jr., against Robert Adams and others. This record was intended to show that as between the parties to the said record, the judgment of Amie Weston against Robert Adams was valid. In the former .appeal in this case, this Court had decided expressly that the Amie Weston judgment, as applicable to this action was invalid, and that the plaintiff could found no right thereon. If the purpose of its introduction on the second trial was to ground a right to- plaintiff in conflict with the former opinion of this Court, it. was properly excluded. If it was to establish an abstract proposition in no way affecting the question, it was irrelevant, and its exclusion was not error.
We do not understand the pertinency of the third exception, as to the recording of the assignment of the homestead and the plot. In the former opinion it was understood that the assignment had been returned for record, and had been recorded, but that the plot, though left in the Clerk’s office, had not been recorded. Upon these facts, the Court held the assignment valid, at least as to the debts then before the Court subject to homestead exemption. We understand that Judge Pressley’s ruling went to the extent that where a debtor is' entitled to a homestead, the Recording of the assignment is not absolutely necessary, as between the parties, provided they have actual notice. This case does not depend upon the question whether the assignment of the homestead was in form and according to the terms of the act, but whether the debtor was entitled to a homestead — -not whether it was set off regularly, but whether he had the right to have it set off at all. Such being the fact, we do not regard the question raised in this ex[374]*374ception as properly in the case, and therefore we express no opinion in reference to it. We have already said in the former opinion that there was no objection to the homestead on the ground of the want of formality in the assignment, or the failure to record the plot.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, on account of error in the charge of the Judge in reference to the McMaster judgment and fi-fa, and that the case be remanded for a new trial.