The opinion of the Court was delivered by
Wright, A. J.While it may be true that a Circuit Judge may on motion after notice change the terms of a mere administrative order which he has made, he cannot interfere with his pronounced judgment in a cause except as provided by the Code of Procedure. The time fixed by the two orders for the sale of the mortgaged land having passed, it is now of no practical importance to consider which of them is to be recognized as effective so far as they express the conditions on which the sale was to be made. A new order must be made which will necessarily supersede them both.
It is not material to inquire whether Visanska had such a residence on either of the tracts of land which would have entitled him to the exemption claimed under the provisions of the Constitution and the Acts of the Legislature if both parcels had been subject to judicial sale by any proceeding other than one arising under a *350mortgage. If he ever had any claim of homestead in the Belcher plantation or the Little River tract, he had divested himself of it by the mortgage, for as to such an instrument there can be no right of homestead as against the claim of the mortgagee. — Homestead Building and Loan Association vs. J. A. Enslow, (ante, p. —.)
If, after satisfaction of the mortgages and the costs consequent upon their foreclosure, there should be a surplus when he makes the application in due form, it will be time enough to consider whether his right by way of homestead in such surplus may entitle him to receive it in bar of the claims of his other creditors.
So much of the order as looks to the payment of the counsel of Rosenberg, the respondent, out of the mortgaged property by requiring the Referee to be appointed to report out of what fund it should be paid must be reversed.
No reason or cause appears why the debt due on the mortgage held by Lewi, the appellant, should be subjected to the chance of not being fully paid by application of any portion of the proceeds of the sale to the fees which Rosenberg has incurred by his intervention in the case.
The debt established by the decree of the 23d of April, 1S75, and the order then made for the foreclosure by sale must be recognized as valid.
It is accordingly ordered that the sale, after due advertisement, may be fixed for any sale-day to be named by the appellant or counsel, on the following terms: One-fourth cash and the balance payable in six months, secured by bond bearing interest from date, together with personal security and mortgage of the premises.
Moses, C. J., and Willard, A. J., concurred.