dAssentmg. I concur with the majority of the court in the opinion which has just been pronounced except as to so much of it as holds that the sale by the supposed authority of the executors of Amie A. Weston, assignee, and James P. Adams, which were incorporated in the homestead, must be referred to the execution of F. W. McMaster, which appears to have been recovered on a cause of action older than the constitution, and which happened to be in the Sheriff’s office at the time of the sale; although the homestead had been assigned under that execution and no instructions had been given by McMaster, the plaintiff, to proceed under it against the homestead, and even its existence at the time of the sale as an execution which could reach the homestead was unknown both to the Sheriff and Agnew, the purchaser.
In October, 1870, there were in the Sheriff’s office of Bickland ■ County, several executions against Bobert Adams, viz : T. P. Weston, Qucurdiam, v. Robert Ada/ms, February 3,1874; G-lerm A. Kaminer v. Robert Adaens, February 6, 1874; James P. Adams v. Robert Adams, February 6, 1874; F. W. McMaster v. Robert Adorns, February 11, 1874; and several others of the same date. These executions were all levied upon the property of Bobert Adams, who claimed homestead, and in January, 1875, the Sheriff issued his warrant, naming all the executions except that of Weston, which had been assigned to Amie A. Weston, to lay off homestead for the defendant Adams, which was done by commissioners appointed for that purpose. At that time none of the creditors *375objected to homestead, but after the decision of this court declaring that the provisions of the constitution and laws which purported to allow homestead as to debts older than the constitution were void, it was claimed that two judgments against Robert Adams has been rendered on suoh contraéis and as against them the assignment of homestead could not stand. These were the judgments of Amie A. "Weston, assignee, and James P. Adams, which were purchased by John Agnew, Sr., who had them specially levied upon the homestead, and the advertisement of the Sheriff declared that it would be sold under these executions alone. Notwithstanding objection by Adams, the Sheriff sold according to his notice. The plaintiff Agnew, became the purchaser, took Sheriff’s deed reciting that the sale was made under the execution of Amie A. Weston, assignee, and brought this action against Robert Adams for the homestead. He recovered a verdict, but upon appeal to this court it was set aside and a new trial granted on the ground that as to homestead the executions of Weston and Adams, under which it was sold, were inoperative and conferred no authority upon the Sheriff to sell, a/nd therefore no title was conveyed to the purchaser.
At the new trial ordered it was discovered that among the cases under which the homestead was” assigned and which were lying dormant in the Sheriff’s office, there was one, that of P. W. McMaster as administrator, which had been recovered upon -a cause of action older than the constitution, and it was then for the first time urged that although the deed from the Sheriff under the executions of Weston and Adams, by authority of which the homestead had been sold, were void for the reason that the Sheriff had no right to sell the homestead under these executions, yet that it must be held valid by referring the sale to MeMaster’s execution, although the plaintiff McMaster had not directed it to be levied upon the homestead, and as a matter of fact was not so levied, or at the time of sale even known to exist as an execution which could reach the homestead.
The Circuit Judge charged the jury, “That if McMaster gave orders not to sell or in any manner abandoned his action *376Tinder his judgment after the homestead was assigned, and if the jury believed that after said claim had been withdrawn, the sale was made as testified by the Sheriff, only under the judgments of Miss "Weston and J. P. Adams, then such sale would not give the purchaser a valid title to the homestead. In such case the sale would not be referred to the judgment of McMaster, if his claim had been withdrawn or abandoned. That a creditor whose judgment was not a lien on the homestead, could not by including it in a sale of land which was bound by his judgment thereby sacrifice the rights of a creditor whose judgment was a lien on the homestead,” etc: Under this charge the jury found for the defendant and the question is whether it was error. It is undoubtedly true that the Sheriff could derive no authotity to levy and sell from executions which were either satisfied in fact, or as to the homestead were inoperative. Hunter v. Stevenson, 1 Hill. 415; Thrower v. Vaughan, 1 Rich 18; Mouchat v. Brown, 3 Rich. 117.
As was said by Judge Butler in the case of Thrower v. Yaugha/n, “ The doctrine as recognized in the cáse of Hwnter v. Stevenson, seems to be this, that every execution unsatisfied on the face of it is pri/tna facie authority to sell, but this, as Mr. Justice O’Neall remarks, may be rebutted by the defendant. He may show that before the sale the execution was paid and thereby the Sheriff’s authority to sell was ended. Satisfaction in fact must be regarded as the termination of the authority of a Sheriff to act under legal process, so far as he may have acquired a right under it to convey title to another. No conveyance can be good which rests upon that which is null and void.” Mr. Freeman also on the same subject says, “ A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights are obtained. Being worthless-itself, all proceedings based upon it are equally worthless. It neither binds nor bars any one.” It is plain therefore that, as decided in the former judgment in this case, the executions of Mrs. Weston and J. P. Adams being entirely inoperative as to the homestead, could give no authority to the Sheriff to levy and sell it to another. “No conveyance can be good which rests upon that which is null and void.”
*377But it is urged for the plaintiff that the sale, void under the inoperative executions, should as a matter of law be referred to the McMaster execution, which seems to have been reached upon a cause of action ante-dating the constitution, and at the time of the sale was lying in the Sheriff’s office. It is true there is a class of cases in our reports which holds that the official sale of a sheriff under process which does not give him the power to sell, may, under certain circumstances, be sustained by referring it to any other authority in. his office at the time, under which he might have proceeded. It does not seem to me, however, that the circumstances here bring this case necessarily within the rule. The doctrine has arisen out of the policy to sustain sheriff’s sales. It proceeds on presumptions contrary to the fact, and in my judgment should not be extended beyond what is absolutely required by the decided cases.
It is not necessary to cite the cases upon the subject, commencing with that of Gist v. McJunkin, 1 McM. 349. It will be found upon examination that in all the cases in which the principle has been applied, one thing has always been considered indispensable, viz.: that the authority in the office to which the sale may be referred must be clear and beyond all doubt, a subsisting living authority, simply waiting to be enforced without further instructions. For obvious reasons the Court will not presume against the fact that the Sheriff acted under a particular authority, or refer his action to it, unless his right to do so was perfect and unmistakable.
The case under consideration is in this respect peculiar. It alises out of the sale of a homestead exemption,and I suppose it is as certainly the policy of the State to support homestead exemptions as to sustain Sheriff’s sales. This is certainly the first case of the kind in this State; and it seems to me that from the very nature of the homestead exemption the Sheriff of his own head had no authority whatever to levy and sell a homestead already assigned without at least express directions from the plaintiff in execution against whom it was assigned. That officer is specially restrained by law from levying and selling the homestead upon pain of being indicted as for a. mis*378demeanor. The amendment of the code then recently passed giving a lien to judgments, declared in terms that this section shall not be so construed as to make final judgments in any case a lien on the real property of a judgment debtor exempt from attachment, levy and sale under the constitution.” The Court will not presume that the Sheriff did what it was not his plain duty to do.
We assume it to be true that the execution in the McMaster case as originally issued, contained the usual general authority to the Sheriff to make the money; but the Sheriff in the discharge of his duty had long before levied the execution, and in response the defendant Adams had applied for and had had assigned to him this very homestead under executions, including this one. That assignment was acquiesced in by the exetion creditors and the defendant placed in possession of the homestead. Subsequent to that time the execution had remained dormant in the Sheriff’s office, and so far as concerned the rights and duties of the Sheriff, a ministerial officer, was substantially functus offioio.
It is true that latterly, after the second levy and sale of the homestead under the inoperative executions, this Court in the case of Bull v. Rowe, 13 S. C. 360, decided, that whilst the laws and the right to homestead were general, an exception existed in reference to debts which were contracted before the adoption of the Constitution, and as to these, the provisions of the Constitution and laws allowing homestead were void and might be so declared whenever the fact was made to appear in any proceeding, direct or collateral. But I do not understand that this decision of itself actually on the instant vacated every homestead which had been jueviously assigned against such debts. It set aside the homestead in the particular case then before the Court, and it also declared a general principle, which the parties in similar cases might avail themselves of. But that result did not follow the decision without some action on the part of those interested in such cases.
The principle declared might include the case of Mr. McMaster, and if so he had the right to take measures to enforce his *379execution without regard to the homestead, and' if he chose to do so it was his right without a sacrifice of the property to receive upon his execution the full value of the homestead, as to which his was and is the only effective execution in existence. But as I understand it all this was for his own exclusive option and action. The homestead previously assigned stood against all the world but him, and prima facie against him until he proceeded against it. He might or might not avail himself of his right to set aside the homestead. Whether his case was within the exception established by the Supreme Court; and if so, whether he chose to avail himself of it, were matters of himself alone, and neither the Sheriff, nor the plaintiff Agnew, nor any other creditor of Bobert Adams, could, to suit his own conscience or interest, determine that matter for him.
It was decided in the case of Monchat v. Brown, 3 Rich., 117, that even parol instructions to the Sheriff by the plaintiff in execution to “Wait orders” was binding upon the Sheriff, so that a sale under another execution which was in part paid, could not be referred to that execution so as to give life to the sale otherwise void. It does seem to me that the circumstances here, and especially the peculiar nature of a homestead exemption, make a much stronger case of suspension of the Sheriff's authority, than the mere verbal “Wait orders” in that case.
After the assignment of homestead, Mr. McMaster never gave the Sheriff orders to proceed under his execution, for the very good reason that at that time it was not known that it could be done, and the question presented is not whether McMaster was estopped from proceeding under his own execution, but whether any other person without his authority could come in collaterally and require the Sheriff to sell under his execution, or have the sale referred to that execution at a subsequent time, so as incidentally to infuse its latent virtue into the title of a purchaser who did not purchase with the least reference to it, but on the contrary under executions which could not possibly touch the homestead.
Hnder these circumstances I cannot think it was error in the Circuit Judge, when he charged the jury that if McMaster *380gave no orders to the Sheriff to proceed under his execution, or in any manner abandoned his action after the assignment of homestead, then such sale could not give the purchaser valid title to the homestead.
New trial granted.