#### F. E. SHOBER et als. v. W. H. WHEELER et als.

Judgment — Effect.

In an action to set aside certain deeds as fraudulent and to foreclose a mortgage, a commissioner was directed to sell all of the defendant’s real estate mentioned in the complaint except that part allotted to defendant as a homestead (winch excepted part was included in the mortgage foreclosed); the commissioner sold one of the tracts, but his report was not confirmed. Subsequently, the court ordered the commissioner to sell the rest of the part allotted as a homestead, in case the other property did not sell for enough to discharge the liens; Held, that the effect of the'first judgment was not a final adjudication, vesting title to the homestead in the defendant, so as to render inoperative and void the subsequent order.

Civil action, beard before Hoke, </., at August Term, 1896, of Foesyth Superior Court, upou the report of a Commissioner, who bad been directed to sell the lands described in the complaint.

The defendant appealed from the order confirming the sale of the lands embraced in the mortgages, a part of which had been allotted to him as a homestead, and which, in the original order of sale, the Commissioner had been directed not to sell, but by a subsequent order he was directed to sell in case a resort to it should be necessary to discharge the liens.

Messrs. Watson cé Buxton, for plaintiffs.

Messrs. Jones c& Patterson, J. 8. Grogan, A. JL. Eller and A. E Holton, for defendants (appellants).

MontgoMeey, J.:

In the judgment of December Term, 1893, Judge Winston appointed "W. B. Slafford receiver “of all the land and real estate described in the complaint in this action.” That part of the real estate of defendant (appellant), which was allotted to him as a homestead, after. *354tbe execution of tbe mortgage set out in tbe complaint, was included in tbe tract called in tbe complaint tbe “Home Place.” Stafford was also made a Commissioner and was instructed to sell tbe-land mentioned4n the complaint except tbe part which. bad been allotted to tbe defendant as bis homestead, and also to report to tbe court tbe particulars of tbe judgment and mortgage indebtedness of tbe defendant. Tbe Commissioner exposed one of tbe tracts of land to public sale and reported tbe same to tbe court, but tbe report was not confirmed. Afterwards Judge Bryan, by another order in the cause, instructed tbe Commissioner to make sale of tbe property and report to tbe next term of tbe court. ín this order be directed tbe Commissioner to sell also tbe homestead if, after baling sold tbe other real estate, tbe amount of the sales from that source should appear insufficient to pay tbe mortgage liens. An exception was noted to tbe order of Judge Bryan and tbe same is brought up on appeal.

In tbe argument here tbe contention of the defendant was that tbe judgment of Judge Winston was one of consent, final in its character and in some way or other passed tbe title and right of possession of tbe homestead to the defendant, and that Judge Bryan’s decree, ordering tbe homestead to be sold under tbe contingency therein named, was void.

We fail to see that tbe judgment of Judge Winston, at December Term, 1893, was by consent in tbe sense that tbe homestead of tbe defendant was-to be exempted from tbe mortgage debt of tbe defendant. There is no such adjudication in tbe order. Judge Winston and tbe counsel no doubt thought that tbe real estate conveyed in tbe mortgages, other than that part which bad been allotted to tbe defendant as a homestead, would be sufficient to pay tbe .mortgage debts and therefore tbe sale of tbe homestead *355would not be necessary. But, when later on it appeared that it would be necessary to sell all of the real estate, including tbe homestead, to pay the mortgage debts, Judge Bryan made the decree ordering the sale of the homestead under the contingency named. The exception to that order and judgment cannot be sustained. The exception to the judgment of Judge Hoke, made at the August Term, 1896, was abandoned here.

No Error.