Dillon sued King for a parcel of land on St. Simon’s Island, in 1879. The title of Dillon rested on a sheriff’s deed to the eight-forty-ninth part of a plantation known as the Retreat, subject to a homestead on the same for which application was pending befóte the ordinary, should that application be granted. The land was sold by the sheriff as King’s, and the deed executed in 1874. In 1875, partition was made of this plantation between Dillon, King as trustee for his wife and children, and Mrs. Nisbet, King, as trustee, and Mrs. Nisbet, being tenants in common with Dillon after his purchase at sheriff’s sale of the individual interest of King, In 1876 the homestead was granted King, and it was laid off and set apart to him under §2040 et seq. of the Code, commonly known as the pony homestead:
The following paper, without date, was introduced in evidence.
“We agree not to contest the exemption of sixty-five acres of plantation on St. Simon’s Island, known as Retreat, by Mallory P. King, which sixty-five acres shall include the dwelling and other buildings on said plantation, provided the application of D. J. Dillon for partition is not contested, said Dillon having purchased at sheriff’s sale the undivided interest that said M. P. King may have in said plantation over and above said exemption.
[Signed.] Goodyear & Harris,
Attorneys for D. James Dillon."
The suit was brought to recover the entire partition ncluding the exemption therein set apart to King as *137homestead, and under the charge of the court the jury found the entire premises for plaintiff, and defendant excepted to the judgment of the court refusing to grant him a new trial on the many grounds set out in the motion. In the view we take of the case, it is unnecessary to consider seriatim all these' grounds.
1. So far as objections to the record evidence of the partition on the grounds that the petition and appointment of commissioners, etc., were not of record, we do not see that the court erred in admitting the judgment of the court which made the return of the commissioners its judgment. The presumption is that the prior proceedings were all right, and the judgment could not be attacked collaterally. The same may be said in regard to the part setting up that but one of the commissioners really went oh the land and acted in dividing it.
2, 3, 4, 5. We think, however, that the verdict is wrong, and should be set aside in any legal view of the facts, and that the court gave such instructions as necessitated the erroneous finding of the jury. <
The plaintiff’s title may be conceded to be — as it appears to be — perfect as against the defendant; but it only covers what he bought from the sheriff. What is that ? The undivided 'interest of the defendant in execution, and the defendant to this action, in the Retreat plantation, after defendant’s homestead under §2040 of the Code is carved out of it. The turning point in the case is this exemption. The sheriff sold and in express terms conveyed to the plaintiff subject to that exemption, and the purchaser bought King’s individual interest, less King’s homestead or exemption — then applied for— whenever granted, if it should be granted. It was after-wards . granted; and after this partition had set apart King’s undivided interest to Dillon, King had set apart to him out of it sixty-five acres. Until Dillon’s undivided interest was divided and separated from that of the other co-tenants, King could not practically carve *138out of it his exemption. It'was impossible for him to have laid off to .him a portion of land out of another portion until the latter was ascertained and itself laid off. Besides, King had no right to this exemption out of his sister’s, Mrs. Nisbet’s, land, nor out of that which belonged to his own wife and children. If he did not get it out of Dillon’s, he could not get it at all, Yet the court instructed the jury that he was entitled to the premises in dispute, which was the entire land partitioned to him, including King’s sixty-five acres therein, and the jury so found.
The counsel for defendant in error, with his usual ability and energy, sought to justify the verdict on the strength of the agreement above set out. That instrument is without date, it is signed only by counsel for the plaintiff, and the counsel on the other side Being dead, it is sought to show by the living counsel that the deceased counsel was bound by it and bound his client to it, though it was signed by neither client or counsel. We hardly think that this should have been allowed and the paper admitted.
But if properly admitted and binding upon the defendant, what is its effect ? Simply to show that the partition should have been made in equity and not at law. How could the dwelling-house and other buildings be exempted to defendant unless set apart on partition to plaintiff first ? And what right had the defendant to the entire buildings, to the exclusion of his sister and his wife and children, his co-tenants ? And how could he bargain away their joint interest in the family home and buildings, and by any agreement with one who had bought his interest, convey theirs, or receive from his grantee, or the sheriff’s grantee to his estate, the interest of others, which that grantee had no right to convey ? Neither as trustee for his wife and children, nor as agent for his sister, could he so legally contract, even if he had signed the agreement, and signed it as agent and trustee, unless his *139power was shown ; much less could his attorney so bargain away the rights of others, who had in no conceivable way employed him or recognized him as their counsel, even had the attorney signed the so-called agreement.
Clearly, therefore, the court was wrong in all the instructions to the jury bearing on the question above discussed, the verdict is against law in these particulars, and not supported by the evidence, and the court erred ip not setting it aside and granting a new trial.
Judgment reversed.