Suit to foreclose mortgage. Decree January 20, 1855. Sale of premises under decree, February 21st, 1855. Property purchased by Cohen & Silverstein, no parties to the original suit. Motion to set aside sale, September 13th, 1855. Sale set aside, and Cohen & Silverstein appealed to this Court.
On the part of respondents, it is urged that the appeal in this case should be dismisssed for certain causes assigned. The causes alleged would not seem to be'sufficient, except the one that the transcript was not filed within the time required by the third rule of this Court. But no motion to dismiss having been made, and the case submitted, it is too late to make the objection in the brief. Had the objection been made by motion to dismiss, then the appellants might have been able to show some good reason in excuse for the failure.
The appellants insist that the judgment of the Court below should be reversed, upon these grounds: First, because the Court had no jurisdiction of the matter, as the term of the Court had expired, and one entire term had intervened between that and the term at which the motion was made; Second, because defendant, Klink, was regularly summoned and failed to set up his right of homestead before the decree in the foreclosure suit; Third, a motion to set aside the sale for the cause stated, was not the proper remedy.
The record in this case is not very accurately made up, and as there may be a doubt whether the notice of the motion was given during the term at which the decree of foreclosure was rendered, it will not be necessary to determine the first point.
As to the seeond ground taken by the counsel for the appellants, it appears that defendant, Klink, was duly served with process in the suit to foreclose the mortgage, and made no defence. It also appears that he made the motion to set aside the sale upon the general ground that the premises were his homestead.
If, then, he could make the notice to set aside the sale, without joining with his wife, then it would seem clear that he could have set up the same matter in defence of the original action to foreclose the mortgage. And if he could singly avail himself of such a defence, he was bound to do so in the first instance; and having waived that right, he could not afterwards assert it.
*353But the proceedings in the foreclosure suit, did not affect the the right of homestead, and the defendant, Klink, could not individually assert it. He had no right to set it up, either in the original suit, or in the form of a motion to set aside the sale.
These points were settled by this Court in the late cases of Revalk & wife v. Kramer and others, and Kramer and others v. Revalk and others, decided at the July Term, 1857.
As to the third ground, we think it is well taken. The question of homestead is too grave a matter to be tried on motion. In this case, Klink and wife should have filed a bill in the nature of a cross bill in the foreclosure suit, or they should have brought ejectment.
Judgment reversed, and the cause remanded.