The opinion of the court was delivered by
Mr. Justice McIvbr.The land of the deceased judgment debtor, L. L. Young, having been levied on by the sheriff under an execution issued to enforce a judgment recovered by the plaintiff, Brown, the petitioners, as the children of the judgment debtor, claimed a homestead therein. The homestead was laid off out of a tract of land containing about 1,100 acres, belonging to the estate of the judgment debtor, of one hundred and seventy-three acres, embracing the residence. The return of the appraisers was duly filed in the proper office, and exceptions thereto were duly filed by certain of the judgment creditors, to wit, the Bank of Newberry, whose judgment was obtained June 11, 1879, and G. P. Copeland, whose judgment Avas recovered February 24, 1886, on a note antedating the constitution of 1868. The other judgment creditors did not except. The ground of the Bank of Newberry’s exception was that the land set off as a homestead exceeded in value the amount allowed by laAV, and the exceptions of the assignee of the Copeland judgment were based upon tAvo grounds: 1st. Because the sheriff had no jurisdiction to appoint appraisers to set off the homestead. 2nd. Because the cause of action upon which that judgment was obtained arose prior to the adoption of the constitution.
The Circuit Judge found as matter of fact that the homestead laid off was not excessive; and seems to have concluded, as mat*301ter of law, that the claim of homestead was good and valid against all of the judgments except the one in favor of Copeland. Accordingly he adjudged and ordered that upon the satisfaction, •within sixty days, of the Copeland judgment, the return of the appraisers in homestead be confirmed; but if said judgment be not satisfied within the time limited, then that said return be set aside and vacated, “without prejudice to the rights of petitioners to make application at some future time for homestead if they shall be so advised.” From this judgment and order the petitioners alone appeal, upon the several grounds set out in the record, which, under the view we take of the case, need not be repeated here.
It seems to us that the only questions presented for the decision of the Circuit Judge were: 1st. Whether the petitioners were entitled to claim a homestead as against any or all of the’ judgments. 2nd. If so, whether the homestead assigned was excessive in value. For the point raised by the first exception filed by the assignee of the Copeland judgment appears to have been abandoned, and such is stated at the bar to have been the fact. At all events, that point was not passed upon or noticed by the Circuit Judge, and as there is no exception to his failure to do so, the point is not before us, and will not therefore be considered. When, therefore, the Circuit Judge determined, correctly, as we think, that the petitioners’ claim of homestead was good and valid against all of the judgments except that of Copeland, and that the homestead assigned was not excessive in value, the case, as presented to him, was fully determined, and it was error on his part to go further and direct that, unless the Copeland judgment should be paid within the time specified, the return of the homestead appraisers should be set aside.
After it had, in effect, been adjudged that the lien of the Copeland judgment covered the whole of the land, as well that portion of it set off as a homestead as the balance, the question as to what steps should be taken to get rid of the lien upon the homestead, or as to what disposition was to be made of that judgment, was a question for the parties concerned and not for the court. If the owner of the Copeland judgment chooses to enforce such lien by a sale of that portion of the land laid off as a homestead, *302we see nothing to prevent him from doing so; but if, on the other hand, he prefers to resort to that portion of the land not embraced in the homestead, it will be time enough, when he attempts to do so, to raise the question which has been argued here, whether the other judgment creditors have any equity to force him first to exhaust the homestead, upon which he alone has a lien, before resorting to the balance of the land upon which they all have a lien ; but how such a question can arise under the present proceeding we do not perceive. Whether there are any other assets of the judgment debtor which can be subjected to the payment of these judgments does not appear, and we do not think that any case is made by the present proceeding which would enable a court properly to determine as to the equities of the parties.
It may be, that, in the end, it would be better for the petitioners to satisfy the Copeland judgment in order to relieve their homestead from the lien of that judgment, but we are unable to understand by what authority the court can order them to do so, especially within a limited time. They may be able to make some more satisfactory arrangement with the owner of the Copeland judgment, and they should not be deprived of the opportunity of doing so.
The Bank of Newberry, holding the oldest judgment, has the prior lien on all of the land outside of the homestead, and when it is sold the bank would be entitled to be first paid out of the proceeds of such sale. But it has no lien on the homestead, and should it be sold under the Copeland judgment, it could have no claim to participate in the proceeds of such sale; and we do not therefore see what interest the bank has in throwing the Copeland judgment on the homestead. The holders of judgments junior to the Copeland judgment may, possibly, have such an interest, if the proceeds of the sale of the land outside of the homestead and the other assets of the judgment debtor, if there are any, should prove to be insufficient for the payment of all the judgments; but, as we have said, that is a question which cannot arise under the present proceeding, and therefore we make no ruling upon it.
The judgment of this court is, that the judgment and order of *303the Circuit Court, as herein construed, be affirmed, except as to so much thereof as directs that the return of the homestead appraisers, and all proceedings therein, be set aside and vacated unless the Copeland judgment be satisfied within sixty days, and as to that, the judgment of this court is that it be reversed.