The-opinion of the court was delivered by
Mr. Chief Justice MoIver.
This was an actiou to recover possession of a tract of land containing 200 acres, more or less, alleged to be in the possession of the defendants. In their answer, the defendants admit their possession of the land, but [111] deny all the other allegations of the complaint. It was, therefore, necessary for the plaintiffs to establish their title to the land in dispute. This they undertook to do by offering testimony tending to show that the land in.question had been sold at sheriff’s sale under executions against one D. S. Branyan, an alleged former owner, and bought by the plaintiffs. This testimony consisted, first, of a judgment entered on the 20th of February, 1885, in favor of the plaintiff Martin against said Branyan, upon which execution was issued the same day. Second, a judgment entered on the same day in favor of the plaintiff Armstrong against said Branyan, upon which, also, execution was issued the same day. Both of these executions were lodged in the sheriff’s office on the 23d February, 1885, and the following endorsements appear upon each of the executions: “Under this execution I have this day levied on all the interest, right, and title of D. S. Branyan in the following real estate, to wit: two hundred acres, more or less, bounded by lands of Marshall Bigby, J. A. Bigby, Bobert McAdams, and others. (Signed) J. F. 0. DuPre, sheriff A. C., Nov. 12th, 1885. 2d levy August 9, 1888, by the sheriff.” The land in question was duly advertised by the sheriff for sale on the sales-day in September, 1888, and on that day was offered for sale and bid off by the plaintiffs—the sheriff first giving the following notice, which was entered in his private sales book: “Sold subject to claim of homestead, and any other claim of (sic) said Branyan may have”—and titles made to them by Sheriff DuPre.
It is stated in the “Case” that “The following papers were offered in evidence by the plaintiffs and allowed by the court:’ ’ 1st. Sheriff DuPre’s deed to the plaintiffs for the land in dispute. 2d. Deed from J. C. Williams to J. N. Carwile, dated 27th March, 1862, for a tract of land described by metes and bounds, containing 110 acres, more or less. 3d. A. deed from Nimrod Williams to J. C. Williams, dated 13th July, 1860, for the same land, containing a recital that it was land devised to •said grantor by the will of his father, A. Williams. 4th. Will of Arthur Williams, devising same tract to his son Nimrod, which wall was admitted to probate 21st May, 1860. 5th. Plat [112] of land made for Henry Branyan August 1st, 1816, by Josiah Kilgore, surveyor general, covering 118 acres. 6th. Plat of same land, except that the number of acres is stated to be 129, made by Joseph Cox, D. S., 30th October, 1841, for Thomas W. Branyan. These'papers, with certain parol evidence hereafter to be noted, were offered for the purpose of showing title in said D. S. Branyan, the claim of the plaintiffs being, as we understand it, that the tract of land in dispute was made up of the two tracts mentioned in said papers. Parol evidence was offered by plaintiffs tending to show possession by said Arthur 'Williams and those claiming under him, for sufficient length of time to give title to the tract alleged to have been derived from said Williams, and similar evidence as to what may be termed the Branyan tract. Various exceptions to the competency of testimony were submitted during the progress of the trial; but owing to the imperfect manner in which the testimony was taken, or the imperfect manner in which it is set out in the “Case,” we have found no small difficulty in ascertaining precisely what were the rulings of the Circuit Judge.
At the close of the testimony for the plaintiffs, one of the counsel for defendants moved for a non-suit, upon the ground that no levy was proved under either execution; which motion being overruled, another one of the counsel for the defence moved for a non-suit, “on the ground of the insufficiency of the evidence as to the possession of Branyan,” which was likewise overruled. No testimony being offered on the part of the defendants, after argument of counsel, and after certain requests to charge were submitted, which being sufficiently set forth in the exceptions need not be repeated here, the Circuit Judge charged the jury as set out in the “Case,” which charge, together with the exceptions served for the purpose of this appeal, should be incorporated in the report of this case.
The first, third, fourth, and fifth exceptions impute error to the Circuit Judge in refusing to allow the defendants to introduce evidence tending to show that the judgments under which the land in question was sold, and through which plaintiffs claim, were void for want of jurisdiction, and in holding that [113] said judgments were not void. The validity of these judgments is sought to be impeached upon two grounds: 1st. Because the acceptance of service, which is in the same form in both of the cases, was not in the proper form, and was not sufficient to show that the court had ever acquired jurisdiction of the person of the defendant. 2d. Because the defendant in said cases being a resident of Anderson County at the time he was sued, the court in Abbeville County could not take jurisdiction of said cases. The acceptance of service is in the following form: “I hereby accept due and legal service of a copy of the within summons and complaint. Dec. 23, 1881. D. S. Branyan.J ’ And the obj ection seems to be of a two-fold character—first, that the written admission does not state the place of service, as required by section 159 of the Code, and, second, that the record contains no evidence that the signature of the defendant Branyan was genuine.
1 It will be observed that these objections are made, not by the judgment debtor Branyan, who, for aught that appears, has made, and still makes, no objection, but by third persons, who, so far as appears, are entire strangers. It seems to us that the case of Darby v. Shannon, 19 S. C., 526, is conclusive; for there a similar objection to a judgment was made by strangers, and it was held that the objection could not be sustained. In that case, the following language from Freeman on Judgments is quoted with approval by Mr. Justice McGowan: “Every litigant, if an adult, is presumed to understand his own interests, and to be fully competent to protect them in the courts. He has the right to waive all irregularities in proceedings by which he is affected, and is entitled to exclusively decide upon the propriety of such waiver. To allow disinterested third persons to interfere in his behalf, and to undertake the management of his business, according to their judgment, would create intolerable confusion and annoyance, and produce no desirable result. To permit third persons to become interested after judgment, and overturn adjudications to which the original parties made no objections, would encourage litigation, and disturb the repose beneficial to society.” And again, from the same distinguished author: “There is a [114] difference between a want of jurisdiction and a defect in obtaining jurisdiction. * * * In case of an attempted service of process, the presumption exists that the court considered and determined the question whether the acts done were sufficient or insufficient. If so, the conclusion reached by the court, being derived from hearing and deliberating upon a matter which, by law, it was authorized to hear and decide, although erroneous is not void.” But, in addition to this, the court would, if necessary, presume that the defendant had, by his voluntary appearance, cured any defect in the service. Code, § 160.
2 As to so much of these exceptions as impute error to the Circuit Judge in refusing to receive testimony tending to show that Branyau was a resident of Anderson County, and,therefore, the court sitting for Abbeville County had no jurisdiction of the cases in which the judgments in question were recovered, we think it clear that they cannot be sustained. The fact sought to be proved did not appear upon the records, and, therefore, it could not form the basis of a collateral attack upon the judgments, such as is attempted here. Turner v. Malone, 24 S. C., 398. If the fact be as claimed, then it constituted a good defence to the action in which the judgments were recovered, and should then have been interposed, or at least by appeal from those judgments, as in Ware v. Henderson, 25 S. C., 385. Such a defence not having been interposed at the proper time, to say the least of it, it is very doubtful whether it could now be entertained in any mode of proceeding, instituted by any person. Bleckley, Brown, & Fretwell v. Branyan, 28 S. C., at pages 450, 451, and the authorities there cited. It is quite certain, however, that it could not avail the defendants, who, so far as appears, are entire strangers, in this attempted collateral attack upon the judgments.
3 The second and thirteenth exceptions question the sufficiency of the levy, and the refusal of the Circuit Judge to receive testimony tending to show that the sheriff did not go upon the land for the purpose of making the levy, but merely placed the endorsement on the executions, which is copied in our. statement of t-he' case, while in his office. We [115] know of no law which requires that the sheriff shall actually go upon the land for the purpose of making a levy, and the requirements of section 1985 of the General Statutes, were fully complied with in making the first levy, to which the sale may be referred. But even if there were defects in the levy, it could not avail defendants, as they might be cured. Sartor v. McJunkin, 8 Rich., 451. See, also, Adickes v. Lowry, 12 S. C., 97, as to the right to sell under first levy.
The sixth exception imputes error to the Circuit Judge in receiving in evidence the deed from DuPre, sheriff, to the plain-4 tiffs without proper proof of its execution. The only testimony as to the execution of this deed was that of Thomas P. Cothran, Esq., whose testimony is set out in the “Case” as follows: “Do you see your name upon that paper anywhere (handing paper)? Yes, sir. How does it appear there? As one of the subscribing witnesses. What is it? It seems to be a deed from J. F. O. DnPre to Sarah J. Martin and A. T. Armstrong, conveying a tract of 200 acres of land in Abbeville County, bounded by, &c. That is my signature, but I don’t recollect anything else. You saw Mr. White sign it? I recognize that as his signature, and swear that to be his.” This is all the testimony which we can find as to the execution of that deed; and it seems to us to be very informal and incomplete. The witness does not say that he saw the paper executed by the person who seemed to be the grantor, nor that it was executed in the presence of the twm subscribing witnesses; and he does not even prove the handwriting of the alleged grantor; for while he does say that “it seems to be a deed from J. F. C. DuPre,” &c., that is saying no more than what an entire stranger to DuPre might say from looking at the paper, and is very far from saying that it was executed by DuPre. While it may be quite true, as intimated in Little v. White, 29 S. C., at page 173, that the execution of a deed may be proved by one of the subscribing witnesses, where such witness can prove all the facts essential to the legal execution of the deed, yet where such witness simply proves his own signature and that of the other subscribing witness, it cannot be [116] said that such proof is sufficient. This exception must, therefore, be sustained.
5 The seventh exception alleges error in permitting the witness, J. N. Carwile, to prove the execution of the deed from J. C. Williams to himself. Inasmuch as it was first proved that both of the subscribing witnesses to that deed were dead, we see no error in allowing the proof of the execution of the deed by any other person who knew the fact. If the subscribing witnesses, or either of them, could have been produced, then they should have been examined; but they being dead, we are unable to see any reason why the grantee, or any person who knew the fact, that the deed had been duly executed, should not be permitted to do so.
6 The eighth exception imputes error to the Circuit Judge in permitting the witness, Carwile, to prove that he had sold the 110-acre tract to D. S. Branyan in September, 1874, While it is quite true that the best evidence of the transfer of the title would have been the deed by which the transfer was made, yet the evidence objected to would be competent to show a transfer of the possession; and such seems to have been the view with which it was received.
7 6 The ninth, tenth, and eleventh exceptions raise the question as to the admissibility of evidence as to the contents of certain alleged lost deeds, without first offering sufficient evidence of their loss. In the first place, the sufficiency of the proof of loss must necessarily be determined by the Circuit Judge $ but, waiving this, we think all this evidence was received for the purpose of showing possession in D. S. Branyan, and not for the purpose of showing legal paper title in him; and for that purpose the evidence objected to was competent.
8 The twelfth exception, as to the refusal of the motions for non-suit, requires but little notice after what has been said. The first ground upon which the motion was rested has been disposed of by what we have said in reference to the levy. The second ground of the motion is conclusively answered by the remark of the Circuit Judge, for the question on a motion for non-suit is, not as to the sufficiency [117] of the evidence, but as to whether there is any testimony at all.
9 The fourteenth and fifteenth exceptions, based upon the refusal to charge defendants’ second and third requests, cannot be sustained. A plaintiff in an action like this must make out his title, but this he may do either by introducing a regular chain of paper title, or by proof of such possession as will warrant the presumption of title. He may resort to either one or the other modes of proving title, and we see no reason, and know of no authority, which would prevent him from resorting to both combined. He may show such a length of possession in some previous owner as would warrant the presumption of a grant to such previous owner, and then he may show a regular chain of paper title down to himself. Even where one of the deeds, constituting a link in such chain, cannot be produced or cannot be proved, we see no reason why possession, if sufficiently proved, may not serve as a substitute for such deed.
10 The twenty-second exception, relating to certain muniments of title received as ancient papers, cannot be sustained, for it sufficiently appears that they came from those who were in possession of the land.
11 The twenty-third exception is based upon a manifest misconstruction of the judge’s charge, and cannot, therefore, be sustained. We have no idea that the jury either put, or could properly have put, any such construction upon the language used by the judge, as is intimated in that exception.
It only remain's for us to consider the sixteenth, seventeenth, eighteenth, nineteenth, twentieth, and twenty-first exceptions, all relating to the matter of the homestead. We do not propose to consider these exceptions seriatim, but simply to determine what we consider to be the law upon the subject, and to inquire whether the judge’s charge is in conformity to such law.
[118] 12 [117] In view of the express provision in the proviso to section 310 of the Code of Procedure, declaring that final judgments shall not, in any case, be a lien on the real property of [118] the judgment debtor exempt from attachment, levy, and sale, under the Constitution, aud of the decisions of this court in the cases of Cantrell v. Fowler, 24 S. C., 424, aud Ketchin v. McCarley, 26 Id., 1. It cannot be doubted that the judgments under which the sheriff undertook to sell the land iu question, never had a lien on so much thereof as might be included in the homestead of the judgment debtor; and this is so, whether such homestead had been actually laid off at the time of or before the sale or not. From this it follows necessarily that the sale of so much of the land as would be embraced within the homestead of the judgment debtor, was without authority, and the plaintiffs, who were the purchasers at such sale, acquired no title to so much of the land as would be included in the judgment debtor’s homestead, if he was entitled to any. So, too, if Branyan, the judgment debtor, after the judgments were recovered, and before the sheriff’s sale, had undertaken to convey the land to a third person, such conveyance, while subject to the lieu of the judgments, so far as such portion of the land outside of the homestead was concerned, would not be subject to the lieu of the judgments, so far as the homestead was concerned, for the reason that the judgments never were a lien upon such homestead; and hence the purchaser from Branyan (if auy) would take a good title for so much of the land as might be included iu the homestead.
If, then, Branyan was entitled to a homestead in the land when these judgments were recovered, and if, as we have seen, the judgments were not a lien upon the homestead, and if, as has been frequently held, a judgment debtor can sell or mortgage his homestead, then it follows that the judgments never could be a lien upon so much of the land as is included in the homestead; for as soon as it is sold and conveyed to a third person, it becomes his property, and as such, of course, not subject to the lien of judgments against another person. See Cantrell v. Fowler, supra, at page 428. The result of this necessarily is, that if Branyan was entitled to a homestead in the land in question at the time the judgments were recovered, the plaintiff's could acquire no title by the sheriff’s sale under these judgments to so much of the land as would be included in [119] Branyan’s homestead, whether the same had been laid off or not, and whether he had sold or still retained the same; and hence the plaintiffs, claiming, as they did, only through the sheriff’s sale, were not entitled to recover the whole of the land, if the jury believed that Branyan was entitled to a homestead, but only so much of the land as would not be embraced within said homestead.
13 We think, therefore, that the Circuit Judge erred in instructing the jury that, in a case like this, where the land was shown by the undisputed testimony to be worth more than one thousand dollars, and where the homestead has not been laid off, the plaintiffs would take "the whole tract subject to homestead, just as he takes a tract of land subject to-do wer.” On the contrary, we think the jury should have been instructed that, under the circumstances mentioned, the plaintiffs could only recover so much of the land as may be found to be outside of the homestead, for to that alone could the plaintiffs acquire title to their purchase at sheriff’s sale, if the jury believed that the right to homestead had been established.
We think, also, that there was error in the instructions as to the damages. It seems to us that it was a mistake to treat the case as that of a tenancy in common. Tenants in common are seized per my and per tout, each being entitled, before severance, to an interest in every inch of the soil; while here, if the right of homestead was established, the relations of the parties were very different. In such a case, the plaintiffs alone were entitled to every inch of the soil, outside of the homestead, without any right on the part of the defendants to any participation therein, while, on the other hand, the plaintiffs had no interest whatever in a single particle of the soil within the homestead limits. It seems to us, therefore, that the amount of damages to which the plaintiffs were entitled depended upon--, the inquiry whether the defendants occupied and used land outside of the- homestead limits, and, if so, how much. Of course, we need not add, that if the jury believed that the right of homestead had not been established, the plaintiffs might, if they otherwise established their title, recover the-[120] whole of the land, as well as such damages as may have beeii incurred by defendants’ use of the same.
14 Under these views, a new trial becomes necessary; bub inasmuch as the Court of Common Pleas has no original jurisdiction to assign or set off a homestead, which it seems to us will be necessary, provided the right of homestead is either conceded or established before any final judgment can be rendered, in remanding the case to the Circuit Court, provision should be made by that court, requiring the defendants who set up the right of homestead to have the same laid off by the proper authority within a time to be limited for that purpose, or otherwise that the right will be barred.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial, and with the instruction to that court to make provision as indicated for laying off the homestead, if the right to the same be allowed.