concurred in the result as follows : It seems to me that the Circuit Judge was in error in supposing that the question now presented as to the validity of defendant’s claim of homestead was decided by this court at the hearing of the former appeal. 22 S. C., 309. At the first trial Judge Aldrich, who then presided, held that the claim of homestead set up by the defendant could not prevail against a judgment recovered upon a cause of action which accrued before the adoption of *135the constitution, which, as an abstract proposition, was undoubtedly correct. But as the homestead claimed was not as an exemption from the debts of the defendant herself, but an exemption from the debts of her deceased husband, this court simply held that there was error in applying this correct legal .proposition, in the abstract, to the particular case presented for adjudication, and therefore sent the case back for a new trial generally, which, of course, involved the necessity for a trial and determination of all the issues presented.
The question now presented for adjudication, to wit, whether there ever had been a valid assignment of homestead to the defendant, as the widow of her deceased husband, was never presented, considered, or decided, either in the first trial on Circuit, or in the former hearing in this court. It certainly was not considered or determined by Judge Aldrich, for, in the view which he took, it was wholly immaterial whether there had been a valid assignment of homestead or not, and this court, when called upon to inquire whether there was error in his ruling, would have had to assume, as it did assume, for the purposes of the inquiry then presented, that there was a valid assignment of homestead, in order to reach the question whether Judge Aldrich had erred in the view which he took. Accordingly we find that the Chief Justice, in delivering the former opinion in this case, uses this language: uFor the purposes of this case, therefore, we must assume that she is legally in possession as homesteadee, with all the rights that appertain to such possession.” And again : “Here, however the homestead has been allowed, and, as we assume, legally assigned.” (Italics mine.)
So that it is apparent the question now presented, to wit, whether a homestead had ever been legally assigned to the defendant as the widow of her deceased husband against his debts, has never before been considered or decided, and is now open for adjudication. It certainly was not, in fact, considered at the former hearing, and was not necessarily involved in the issue then presented, and therefore when the case was sent back for a new trial the plaintiff had a right to have such question considered and determined; for the only point really decided by the former opinion is, that where a tract of land has been assigned to the *136widow of a deceased husband as a homestead, and as such exempt from his debts, such land cannot be sold under an execution against her, even though the judgment upon which such execution was issued, was obtained on a cause of action arising-before the adoption of the constitution, because she has no leviable interest in such land, but a mere right of occupancy as a homestead.
Having reached the conclusion that the question now presented is not res adjudicata by the former decision, it is only necessary for me to add that I fully concur in the conclusion reached by Mr. Justice McGowan, that the husband of the defendant having died before the adoption of the constitution, no valid assignment of homestead to his widow could have been made, as claimed by her.
Judgment reversed.