The opinion of the Court was delivered by
Willard, A. J.The Circuit Judge having dismissed the complaint on complaint and answer alone, it is necessary for us to consider whether, upon the facts stated by the complaint, the plaintiff is entitled to the relief demanded by him, or to any relief whatever.
The plaintiff claims to be the owner in fee of certain lands in the possession of the defendants. His title, as alleged, was derived as purchaser at a Sheriff’s sale under a judgment recovered in 1859 against James Younge. Margaret, the widow of the deceased judgment debtor, obtained the assignment of a homestead in the premises in controversy on the 25th of October, 1869. She died in 1872. The defendant, Agnes, the wife of J. S. Carroll, the minor child of James and Margaret Younge, is now in the enjoyment of the homestead. In January, 1872. after the assignment of the homestead, the premises covered by the homestead exemption was sold at Sheriff’s sale, subject to the right of homestead, and purchased by the plaintiff. He alleges that defendants are com*85mitting waste by the destruction of the timber, and the answer does not deny such waste.
The judgment dismissing the complaint appears to have been based upon a determination that the right acquired under the assignment of the homestead, and now held by the defendants, was in the nature of a fee simple, and that, accordingly, waste could not be alleged.
At the close of the appellant’s argument a question appears to be discussed affecting the validity of the proceedings for the assignment of the homestead, on the ground that such assignment was in violation of the rights secured by the judgment, and tended to impair the obligation of the contract enforced by such judgment. That question cannot be made at the present time. If the assignment of the homestead was, for any reason, in violation of plaintiff’s rights, advantage should have been taken of such fact in a direct proceeding; it cannot be considered collaterally as sought by the plaintiff in a suit to stay waste. The plaintiff’s case is placed by him upon a purchase made subject to the homestead right, and, doubtless, at a price based on the assumption of the validity of the homestead claim, and, accordingly, he does not occupy a position enabling him to open the question of the validity of the original assignment.
The first question that is presented is, whether the plaintiff shows in himself an estate or interest in the lands of such a nature as to entitle him to restrain waste on the part of the defendants. His whole claim depends upon the validity of the Sheriff’s sale, under the judgment, of the premises subject to the homestead. The defendants claim to hold the premises in the right of the defendant, Agnes, as an estate in fee simple. On the other hand, the plaintiff claims to have acquired the fee under the Sheriff’s sale.
The question then arises, did the fee of the lands pass to plaintiff under the Sheriff’s sale? If not, are defendants in a position to allege against the effect claimed for such Sheriff’s sale ?
At the time of the sale of the premises in question they were subject to a right of homestead which we must assume to have been rightfully assigned. The Constitution declares that such homestead “ shall be exempt from attachment, levy or sale on any mesne or final process issued from any Court.” It is clear that this language distinctly forbids such execution of final process as that under which the plaintiff claims. It is equally clear that, as the plaintiff claims *86through the operation of the law above, and not from any act of the parties, he can only take that which the law confers on him in virtue of the validity of his proceedings. Now as the Constitution is a part of the law governing the force and effect of the process of the Courts, it follows that that which the Constitution forbids cannot be effectually attained through the abuse of the process of the Courts. Unless, then, there is something in the proposition, that although the land could not be sold, yet a remainder over after the expiration of the homestead right could be sold, the plaintiff altogether fails to show such title in himself as he alleges as- the foundation of his demand for relief.
We must, then, inquire whether enforcing a judgment against premises in respect of which a homestead right is properly secured, by way of selling a remainder therein, to vest in possession after the termination of the right of homestead, is conformable to the Constitution.
If the Constitution, in using the term “exemption,” means absolute exemption, then it is clear that the attempt to sell such a remainder was a violation of its terms.
In order to hold that a limited exemption only was intended, such as would admit of stripping the judgment debtor of title, while leaving him a limited right of possession alone, it would be necessary to find either language in the Constitution importing such limitation, or something in the declared policy of the enactment rendering such a construction proper. Nothing of this kind appears in the Constitution, or can be made out on the principles of construction. The object of the Constitution was, clearly, to perpetuate in the judgment debtor or his family, under certain conditions, the ownership as well as the use of the family homestead. We are not justified in diminishing the force and effect of the word “exempt” as it stands in the Constitution.
The plaintiff has not made out a title in himself that authorizes an injunction to stay W'aste.
It is not necessary, then, for us to consider what was the nature of the interest remaining in the judgment debtor and his family under the operation of the homestead laws, for the plaintiff does not put himself in a proper position to question the nature of the defendants’ right of possession.
The appeal should be dismissed.
Moses, C. J., and Wright, A. J., concurred.