dissenting. This caséis presented under a somewhat peculiar aspect. The main object of the action *517seems to have been to sell the lands of the testator, Stephen W. McKenzie, for the payment of his debts, his personal estate being insufficient for that purpose, and to the action his heirs at law and devisees, of whom his widow, Harriet E. McKenzie, was one, were duly and properly made parties. There was no exception to, or appeal from, the order directing the master to sell the real estate for the purpose indicated, and no claim of homestead was set up in said action, either by answer or otherwise. But after the sale had been ordered and the property advertised, the widow, Harriet, filed her petition, addressed to the master, I presume, though it is not so distinctly stated in the “Case,” praying that a homestead should be set off to her and her minor children.
Under this petition no steps appear to have been taken, and no effort made in any proper form, to require the master to proceed to have the homestead set off. On the contrary, the master exposed the property for sale at the time directed by the order, and after the advertisement had been read, and before any bid had been made, Andrew Crawford, Esq., as the attorney of the widow and her minor children, formally gave notice of their claim of homestead, and that he had instituted proceedings in the master’s office to obtain same. Thereupon the master announced that all persons would bid subject to such claim. The sale then proceeded and the property was bid off by Mr. Crawford, who announced the bidder to be “Andrew Crawford, attorney.” The bidder declining to comply, a rule was taken out, requiring Andrew Crawford, Esq., to show cause why he should not be attached for a contempt in refusing to comply with the terms of the sale. 'To this rule a return was made, sworn to by Harriet E. McKenzie, in which she assumes the responsibility for the bid of Mr. Crawford, if any, stating that he was acting throughout as her agent and representative, and after setting forth, amongst other things, the facts above stated, claimed that the course pursued by the-master was illegal, and that she was not bound to comply with the bid made by her attorney.
It seems that after the order of sale was made as above stated, Harriet E. McKenzie moved before his honor, Judge Fraser, for an order to open the judgment and for leave to file an answer setting up the claim of homestead. This motion was refused, but *518in refusing the motion, Judge Fraser said that he was inclined to the opinion that the right of homestead was not necessarily involved in the action, and that where no process has been lodged against the debtor, proceedings to obtain the homestead should be taken under section 2002 of the General Statutes. From the order refusing the motion to open the judgment no appeal was taken, hut Harriet E. McKenzie, acting on the intimation of Judge Fraser, filed the petition in the master’s office above referred to.
The case below as well as here seems to have been treated as practically a rule against Harriet E. McKenzie, the real bidder; and the Circuit Judge discharged the rule upon the ground stated in the “Case,” and from this order discharging the rule the plaintiff appeals upon the several grounds set out in the record, as well as in the opinion prepared by the Chief Justice, and which need not therefore be repeated here.
The first ground raises the question as to the effect of the failure of the parties claiming to be entitled to a homestead to set up such claim in the action, the object of which was to sell the real estate of the debtor, Stephen W. McKenzie. In the decision of this question I must confess to a feeling of no little embarrassment. While it is well settled that the Court of Common Pleas had no jurisdiction to admeasure or lay off a homestead, but the same must be sought in the modes prescribed by the statute (Ex parte Lewie, 17 S. C., 153; Myers v. Ham, 20 Id., 522), yet it is equally well settled that where, in the course of some proceeding properly before that court, it becomes necessary to adjudicate the right of homestead, it has full power to make such adjudication, leaving the party in whose favor such right is adjudged to enforce the same by a proper proceeding before the appropriate tribunal in the mode prescribed by statute. Munro v. Jeter, 24 S. C., 29; Swandale v. Swandale, 25 Id., 389; Bridgers v. Howell, 27 Id., 425. Now, in this case it does seem that before any order for the sale of the land could properly have been made, the alleged right of homestead therein should have been adjudicated. All the proper parties necessary for that purpose were before the court, and that, as it would seem, was the proper time to adjudge the question. But no such question was *519then brought to the attention of the court, and, of course, it proceeded to order the sale without regard to the alleged right of homestead. Certainly if the claim of homestead had then been set up and denied, and there had been no appeal, the claim could not afterwards have been successfully asserted.
Now, if the claim was not set up when it ought to have been, the proper parties for the purpose being before the court, it would seem that it ought to stand upon the same footing as if it had been set up and rejected. The court could not render the judgment sought to be obtained, to wit, a sale of the land, properly, without first determining the right of homestead, for it had no right to sell land for the payment of debts in derogation of the right of homestead ; but as the parties entitled to such right did not see fit to set it up, and as the court could not undertake to determine a right not set up, it would seem that the judgment for the sale of the land amounted practically to a denial of the right, and that it is too late now to set it up. It is true that the case of Ex parte Strobel (2 S. C., 309) decides otherwise, but the point seems to have received but little consideration in that case, and since the decisions above cited, where, as in Munro v. Jeter, it is said that in marshalling assets it may become necessary to decide the question of homestead, it seems to me that Strobel’s case should be reviewed. Until,.however, that decision is overruled, I am bound by it, and I yield to it as authority.
Assuming, then, as I am bound by authority to do, that the right of homestead was not barred or adjudged adversely to the claimants by the failure to set it up in the action which culminated in an order for the sale of the land, I do not see how this right of homestead affords any legal excuse for a failure to comply with the bid. Harriet E. McKenzie must be regarded as bidding voluntarily on land in which she knew she had a claim of homestead. She was not deceived or misled in any way. On the contrary, the officer conducting the sale explicitly declared that the purchaser would buy subject to the claim of homestead, and yet in the face of such a declaration, and, of course, with full knowledge that she had instituted proceedings to obtain a homestead in that very land, she, through her accredited agent, voluntarily bid off the land, and it seems to me that she is bound to *520comply, for the necessary inference is that she estimated the land to be worth the amount of her bid over and above the homestead. It is like the case of a person bidding off land subject to a prior mortgage .of which he has full notice, where the amount of the hid is always regarded as the purchaser’s estimate of the value of the property over and above the encumbrance.
It may be possible that Harriet E. McKenzie had good cause of complaint against the master for not proceeding to lay off her homestead before making the sale (as to which, however, I express no opinion); but that is not a matter before us, and so far as I can see has nothing whatever to do with the present inquiry. The simple question presented for our determination is whether she shall be required to comply with her bid, made with her eyes open, and with full knowledge of all the circumstances; and I am unable to discover any reason why she should be excused from compliance. If she saw fit to buy land, which, as alleged in her return to the rule, is not worth as much as the exemption allowed, in which she had a valid claim of homestead, that was her own folly, and she must take the consequences.
It is said, however, that she cannot be required to comply with her bid, because the sale was rendered void by the declaration of the master that “all persons would bid and buy subject to the claim of homestead,” which, it .is claimed, was an unauthorized .addition to the terms of the sale as prescribed by the court. I cannot so regard it. After notice had been given by the attorney representing the claimants that he had instituted proceedings to obtain a homestead in the land offered for sale, the master simply stated as a fact, what every one must have known, that the purchaser would buy subject to such claim. How this can be construed as an alteration pf the terms of the sale, I am unable to conceive. But even if it could be so construed, then there was no alteration of the terms of the sale, for undoubtedly the court could not order a sale of land for the payment of debts, except subject to any claim of homestead that might be made therein ; and this court certainly would not assume that the Circuit Court had done what it had no power to do.
Again, it seems to me tobe a mistake to treat this as a case of the sale of land under final process. As I understand it, the *521homestead laws make two distinct and different provisions in regard to the mode of obtaining the exemption allowed, one applying to cases where the sheriff or other like officer, for instance, the coroner or a constable, has a mandate in his hands, in the shape of mesne or final process, requiring him to sell property for the payment of debt, the other to cases where no such process has been lodged with the sheriff or other like officer; and the modes of proceeding in the two cases are entirely different. In the former cases the sheriff or other like officer is required to cause three appraisers to be appointed, and proceed as is directed in section 1991 of the General Statutes; but in the latter cases the proceeding is by petition on behalf of the claimants, addressed to the master, or to the clerk of the court, if there be no master, who is required to proceed as directed in section 2002 of the General Statutes. It is true that in section 1994 the language is, that “the sheriff or other officer”' — -and not the sheriff or other like officer — shall, before selling under any mesne or final process, proceed as is directed in that section ; but the terms of section 2003 show that the provisions of section 1994 are confined to sheriffs and other like officers, and do not embrace masters or clerks of court, for the language is, “No sheriff, constable, or other officer, whose duty it is to enforce executions, shall proceed,” &c., and the words which I have italicized plainly indicate what classes of officers are referred to.
Now, in this case it does not appear that any judgment had ever been recovered against Stephen W. McKenzie, and, of course, no final process had ever been lodged with the sheriff or other like officer, and hence the only appropriate proceedings on the part of the homestead claimant was a petition to the master. That officer had no authority to proceed to have the homestead laid off in the manner which a sheriff would have been required to do, who had in his hands final process to enforce the payment of a debt; for he is not an officer whose duty it is to enforce executions, and he had in his hands no execution. The order of court under which he was acting can in no proper sense be regarded as final process. He was simply an agent or officer of the court entrusted with the duty of carrying out its instructions, one of which was to sell certain real estate for the purpose of *522enabling the court to administer the assets of the deceased. The court itself had ordered him to sell certain specific real estate, and I do not see by what authority he could have undertaken to disregard that order and proceed to lay off a homestead in such real estate in the manner prescribed for a sheriff to proceed before selling any property of a judgment debtor under final process lodged with him for the enforcement of the payment of a debt.
For these reasons I am unable to concur in the conclusion reached by a majority of the court.
Judgment affirmed.