4 I concur fully in the conclusion reached by Mr. Justice McGowan in the leading opinion in this case; but it may not be amiss to add thereto the following considerations. It being conceded that the title to the land in dispute descended to the plaintiff upon the death of his father, the only question is whether he has been legally divested of such title. This the defendant claims has been done by the sale by the sheriff under the alleged execution issued to enforce the payment of the deficiency remaining after the sale of the mortgaged premises in the case of Clowney, clerk, vs. Elkin, as administrator of the mortgagor, and the present plaintiff, as his heir at law, supported by the alleged execution issued to enforce the payment of the deficiency remaining after the sale of the mortgaged premises in the case of Pollard against the same parties. The jury having been instructed that the sale by the sheriff could not be sustained under the execution in the Clowney case, we need not, and, indeed, can not, consider the correctness of such instruction in a case like this (trial by a jury), even under the notice given by respondent’s counsel, assailing the correctness of such instruction. Bonham v. Bishop, 23 S. C., 105, recognized in Amaker v. New, 33 S. C., 37, and Fleming v. Fleming, Ibid., 510.
So that, it seems to me, that the only question now presented in the case is whether the Circuit Judge erred in charging that the sale might be sustained under the alleged execution issued in the Pollard case. The position taken by counsel for respondent, that this question has not been properly raised by the exceptions, cannot be sustained. That question, as it seems to me, is the turning point in the case, and was sufficiently presented by the third ground of appeal. It, therefore, must be considered. As I understand it, the Circuit Judge, while re-
*202cognizing the decision in the case of Hull v. Young, 29 S. C., 64, in which it was held that, in an action for the foreclosure of a mortgage of real estate, no personal judgment can be rendered against the mortgagor for any deficiency until the amount of the same has been ascertained by a sale of the mortgaged premises, and an application of the proceeds of such sale has been made to the mortgage debt, yet he instructed the jury that the j udgmeut for the deficiency not having been appealed from, must stand as a valid judgment, even though erroneous, and, therefore, constituted a sufficient basis for the execution issued to enforce it, under which the sale in this case was made, or to which it might be referred; and he cited the case of Freer v. Tapper, 21 S. C., 75. That case, however, does not support the view taken by the Circuit Judge. There the question arose upon a motion for a non-suit, based upon the claim that there was no evidence of a sale of the mortgaged premises, and hence no basis for a j udgment for any deficiency; but the court held that there was some evidence that there had been a sale, and the court held that there was no error on the part of the Circuit Judge in submitting that question of fact to the jury, and no error in refusing the motion for a non-suit. Besides, as shown by Mr. Justice McGowan, there was another ground amply sufficient to sustain the judgment in that case.
If, then, as is most conclusively shown in the opinion of Mr. Justice McGowan, no personal judgment can be rendered for any deficiency until after the sale of the mortgaged premises, when alone the amount of such deficiency can be ascertained, it follows, necessarily, as it seems to me, that anything purporting to be a judgment for such deficiency rendered before the amount thereof could possibly be ascertained, would be a mere nullity, and would afford no basis for an execution to enforce it. Indeed, it is utterly incomprehensible to me how a judgment for the payment of money could be rendered before the amount thereof had been, or could possibly be, ascertained. Again, it seems to me that after a sale of the mortgaged premises has been made, the question, whether there is any deficiency, and if so, the amount thereof, is a judicial question, upon which the mortgagor has a right to be heard, as grave and difficult *203questions might be presented as to the application of the proceeds-of the sale of the mortgaged premises, which surely ought not to be left to the decision of a mere ministerial officer who makes the sale, but which should be determined by the court. Indeed, the proceedings in this case, after the sale of the mortgaged premises, furnish a striking illustration of the propriety and necessity for the rule contended for.
If, then, no judgment can be rendered for any deficiency until the amount thereof has been judicially ascertained, it is quite clear that no execution can be issued to enforce such so-called judgment, and any paper purporting to be such is a mere nullity, and affords no authority to the sheriff for making a sale. Inasmuch, therefore, as the validity of a sale made by the sheriff depends upon the inquiry, whether the power has been conferred upon him by any valid process of law, it follows that unless such power has been conferred upon him, any attempted sale is a nullity, and confers no title upon the purchaser. If, as was held in Sims v. Randall, 2 Bay, 524, a sale made by a sheriff under an execution which had lost its active energy before any levy was made, is absolutely void, surely a sale under an execution which had never had any vitality must be likewise void. See Sheriff v. Welborn, 14 S. C., 480, and the cases therein cited. This, therefore, is not a ease, as the Circuit Judge seemed to suppose, of a sale under an execution issued to enforce a judgment which was simply erroneous, but it is a case of a sale under an alleged judgment, which the court had no authority to render at the time it was entered.