The opihion of the Court was delivered by
Moses, C. J.
The action was for the recovery and surrender of one hundred and sixty-two acres of land, the title to which appellant derived from L. D. Mowry & Son, who, on the first day of January, 1871, had purchased the premises at Sheriff’s sale, under an execution on a judgment entered 2d April, 1868. The respondent claims that by virtue of his right as the head of a family he held a homestead in the land, duly assigned to him according to law; that it was not liable to levy and sale, and that the appellant, by his alleged purchase, had acquired no title. This right is resisted on various grounds set out in the brief, and which will be' noticed without regard to the order in which they were presented.
It is not necessary to discuss and decide the abstract proposition submitted by the appellant, which denies to one the right of homestead in property held in common with another. Whether the Constitution and the laws which have been passed in regard to the right conferred by that instrument confine it only to property of the prescribed value in which the applicant holds a sole and absolute estate, is not material in this case. If the appellant had an interest in common with his sister in the land at the time of the assignment of the homestead, the subsequent partition and setting apart to him of the very portion in which the homestead was situated gave, by operation of law, a right in severalty to the same extent as if he alone had held it before such assignment. The right of the ease must be determined by the solution of the material question which it involves. At the time of action brought, or even at the moment of trial, had the respondent acquired any right of homestead in the land, the subject of the suit? Was there conferred by law such an interest in the premises as protected them from sale under the judgment and execution of the said L. D. Mowry & Son? Ryan, the appellant, represents the purchaser at said sale, and is entitled to every benefit which Mowry & Son might have claimed had they retained the premises and been plaintiffs in the present action.
*149The Constitution (Article II, Section 32,) exempts the family-homestead to the value of one thousand dollars from attachment, levy or sale on any mesne or final process issued from any Court, and makes it “the duty of the General Assembly,” at their first session, “to enforce the provisions of the Section by suitable legislation.” The Act of 1868 (14 Stat., 19,) was passed by the Legislature in conformity with this requisition, and it prescribes the mode and manner by which the beneficent provision of the Constitution was to be secured. It requires the assignment to be made by three appraisers, one to be appointed by the creditors, one by the defendant in the execution, and the third by 'the Sheriff. The assignment is to be returned by the officer with the process “ for record in Court, and if no complaint shall be made by either party no further proceedings shall be had against the homestead.” No return has, in fact, yet been made to the Court as contemplated by the Act; and, indeed, so far as appears from the brief, the appellant had no notice of it until it was offered in evidence on the trial; nor was there any proof that his grantors, L. D. Mowry & Son, ever knew that any assignment had been made. So far from any testimony to show that it had been on file in the office of the Clerk of the Court, it appears to be conceded that from the possession of the appraisers it went into that of the party, and there remained until by him exhibited at the trial for his own protection. With every disposition to carry out, in the liberal spirit which actuated the framers of the Constitution, this humane interposition for th.e benefit of the families of unfortunate debtors, we are stopped at the very threshold by the question: Has there ever been here such a return as Was intended by the Act of 1868 “ to determine and perpetuate the homestead,” the only one in force at the date of these transactions? How could Mowry & Son be held bound by the return, or said to have given effect to it by not complaining, when it was never filed, and there was nothing “in the record of the Court” against which they could aver ?
This is the general view which must be taken of the case under the Act of 1868. Regarded in a more limited aspect, the principle which must regulate the point now under discussion leads but to one conclusion: The debt of Mowry & Son was contracted before the adoption of the Constitution of 1868. Has there been any judgment, in respect to this right of homestead exemption, in which Mowry & Son can be held so to have acquiesced as to deprive them*150selves of their rights under the Constitution of the United States to control its validity ? That as to debts contracted before the Constitution of 1868 the homestead provision cannot apply, has been decided in respect to a question raised under the Constitution of a sister State, by the Supreme Court of the United States, and this Court, as in duty bound, has given effect to it in the case of Cochran vs. Darcy, 5 S. C., 125. A party may lose the benefit of a protection afforded by a constitutional provision if he refrain from interposing it as a bar to a recovery sought against him, and after judgment may be precluded from then resorting to it for the purpose of then redeeming a right thus-lost. But to bar him there must be!a previous judgment on the very issue. Here, so far from there having been judgment, the return was never made to the Court, and if Mowry & Son had any notice, it was not of the return, against which they might have complained, but of the mere claim of the respondent to a homestead, which they could not meet and resist, until asserted as a right through some judicial proceeding, or interposed, as it now is, to bar the recovery of the premises by force, not of the claim, but of the right.
We think there was error in the charge of the presiding Judge, “that the homestead is good and valid,” and the motion for a new trial is granted.
Willard, A. J., and Wright, A. J., concurred.