The opinion of the court was delivered by
■ This was an action for the possession of a ■tract of land known as the “ Bluff Plantation.” The defendant resisted the plaintiff’s right to recover two hundred acres of the tract, mainly on the ground that it “ had been assigned to him ns a homestead, according to the provisions of the constitution •and laws of the state.”
Prior to 1875, several judgments and executions had been lodged against the defendant, Robert Adams,- and in October of that year these executions were levied upon the Bluff plantation, then described as containing nine hundred and two acres, in the possession of the defendant. He made application for homestead, and the sheriff issued his warrant, naming in it all the ■cases in his office against the defendant (except that of Amie A. Weston, assignee, to which particular reference will be made ■hereafter,) appointing appraisers to lay off homestead for the de
1. That of Amie A. Weston, assignee, v. Robert Adams and James P. Adams, upon a bond dated April 24th, 1866, for $727.23. This judgment was rendered by default before the clerk of the court, out of term time, February 3d, 1874. A motion to docket the case and take judgment in court had been refused, and also an application to set aside the judgment had been denied by the same judge, on the ground that at the time the judgment was rendered before the clerk there was no valid law forbidding it.
2. The judgment of James P. Adams v. Robert Adams, for $3800, upon a bond bearing date May 25th, 1868, but alleged to be the renewal of an indebtedness older than the constitution,, part of which was the balance of a bond given for the half interest of James P. Adams in lands (seventeen hundred and sixty acres,) which James P. and Robert had inherited from their father, and of which the “ Bluff Plantation ” was part. Robert had sold off nearly half of it, leaving in his possession little more than his own half, nine hundred and two acres.
The judgment creditors, James P. Adams and Amie A. Weston, one a cousin and the other a brother of Robert Adams, never disturbed his possession of the homestead, but some time prior to 1$78 they assigned their judgments to John Agnew, Jr., who, as assignee, directed the sheriff to levy and sell the land which had been assigned to the defendant as homestead. The defendant gave notice of his claim of homestead, but, March, 1878, the sheriff sold, as he testified, “ simply according to his advertisement, and as sheriffs always sell.” Thomas Agnew became the
The grounds urged for non-suit and a new trial, and the exceptions for errors of commission and omission on the part of the judge, are very numerous, but the real questions are involved in the following rulings :
“ That the judgments of James P. Adams and Amie A. Weston, assignee, were founded on bonds executed before the adoption of the constitution • the bond of James P. Adams, although dated May 26th, 1868, being, according to the evidence, the renewal of an old bond given in 1859 for the purchase money of the land in dispute, and cited the case of De La Howe v. Harper.
“ That the return of the appraisers setting off the homestead had not been recorded, as required by the provisions of the homestead act, inasmuch as the plat, which is a part thereof, had never been recorded, and there is no description by metes and bounds or otherwise, of the homestead premises, and therefore the jury, provided they found the other facts for the plaintiff must return a verdict for the plaintiff for the land in dispute, and such damages, if any, as they might think the testimony warranted.”
The question is, whether there was error in these rulings. It is conceded that the defendant is not entitled to retain the homestead which was laid off to him in 1875, if either the judgment of Amie A. Weston or James P. Adams was a valid judgment, and rendered upon a contract made before the constitution of 1868. If that is shown, the assignment of homestead made must be considered as void, quoad such judgment, which conferred authority upon the sheriff to sell, and the purchaser can recover it from the defendant, notwithstanding his claim of homestead.
1. As to the judgment of James P. Adams. It was recovered on a bond bearing date May 25th, 1868, after the adoption of the constitution, which was. ratified by the people at an election on April 14th, 15th and 16th, 1868. This bond was certainly prima fade evidence of the contract of the parties as of that date. The plaintiff and defendant were brothers. Robert swears that “ on May 23d, 1868, James P. and witness had a settlement of old matters between them. James P. said: ‘Let’s wipe out old scores and begin over.’ We did so, and I gave him a bond (the one now. in judgment) for $3800. Everything I owed James P. was put in this new bond. This bond was payable at a different time from the old bond, and at twelve per cent., I think, instead of seven per cent, on the old one.” It is said that declarations of Robert were proved, in some particulars, in conflict with this statement. In any point of view this testimony raised a question of fact, whether the new bond was a novation or merely a substitution for the old indebtedness, and it was error on the part of the Circuit judge to withdraw that question from the jury. But we do not think that any such issue was properly involved. From the nature of the question the inquiry was simply as to the time the contract was made. The constitution of the United States declares “ that no state shall pass any law impairing the obligation of contracts,” without any reference to the time when the consideration arose, whether it was old or recent, a bond of older date or property sold that day. That which the constitution seeks to protect is the obligation of the contract, and • the bond affords at once evidence of the contract and the means of enforcing it. The case of De La Howe v. Harper, 5 S. C. 470, cited by the Circuit judge, has no analogy to this. That was the case of an administration bond, which was executed before the adoption of the constitution aud a devastavit established against
Besides, the plaintiff, James P. Adams, accepted the bond given May 25th, 1868, and sued on it and recovered judgment, which is the record in the case, but has upon it no such endorsement as a certificate of the court “ that the same was issued to enforce the payment of an obligation contracted for the purchase of said homestead,” as the law in such case requires, (15 Stat. .231), and neither the plaintiff nor his assignee, who holds under him, can now deny that the bond is the contract of the parties at its date, or go back, of it into the consideration thereof. “ A party cannot occupy inconsistent positions, and where one has an election between several inconsistent causes of action, he will be confined to that which he first adopts. Any decisive act of that party, done with knowledge of his rights and of the fact, determines his election and makes an estoppel.” Bigelow on Estoppel 578; Rodurmond v. Clark, 46 N. Y. 354; Hyde v. Baldwin, 17 Pick. 303; Dewey v. Bell, 5 Allen (Mass.) 165; Hooper v. Hubbard, 7 Mass. 177. The sheriff, or his adviser, took this view, for it will be remembered that he placed this judgment .among those in which proceedings issued to assign homestead in 1875. We think the Circuit judge erred when he charged the jury “that the judgment of J. P. Adams was founded upon a bond executed before the adoption of the constitution.”
2. As to the judgment of Amie A. Weston, assignee. This was ■undoubtedly founded on a bond executed before the adoption of the constitution, viz., on April 24th, 1866; but it is alleged that it is not a valid judgment, having been rendered before the clerk of the court February 3d, 1874, not in “ term’ time and in open court,” On November 25th, 1873, the legislature passed an amendment to the code as to the rendition of judgments by de
After this amendment became law, the alleged judgment of Amie A. Weston was rendered by the clerk of the court, not “ during term time and in open court,” in direct violation of its terms, which not only affords no authority for such a proceeding, but positively forbids it. This was not a mere irregularity-susceptible of amendment, but a substantial defect, rendering it absolutely void, as much so as if it had been rendered by the mayor of the city of Columbia. We are, therefore, constrained to hold that the alleged judgment of Amie A. Weston, assignee,, and the execution issued thereon, are absolutely void. “A judgment pronounced by a tribunal having no authority to determine the matter in issue, is necessarily and incurably void, and may be shown to be so in any collateral or other proceeding in which it is drawn in question.” Freem. on Judg., § 120; Hill v. Robertson, 1 Strob. 1; Thompson v. Tolmie, 2 Pet. 169.
But it is said that a motion was twice made and refused to place the case on the proper-calendar and take judgment in open
3. As to the assignment oj homestead. The judge charged that the return of the appraisers setting off the homestead had not been recorded, as required by the provisions of the homestead act,, inasmuch as the plat, which is a part thereof, had never been recorded, and there is no description by metes and bounds, or otherwise, of the homestead premises. The commissioners made-return as follows: “We have appraised and set off by metes and' hounds to the said debtor, as his family homestead, all that piece- and parcel of land designated on the plat hereunto annexed, and marked ‘ family homestead,’ containing two hundred acres, and have appraised the same at the sum of one thousand dollars, as-will more fully appear by the plat hereto annexed,” &c. They returned the assignment and plat to the clerk of the court, who-recorded the assignment and placed the plat in his desk, where it-could be easily referred to. The law does not, in express terms,.
The judgment below is set aside and the case remanded for a mew trial.