The opinion of the Court was delivered by

The Circuit Judge refused to confirm the sale of the premises referred to in the pleadings because a right of homestead therein was vested by the General Order of General Sickles, commanding the Second Military District, (comprising the States of North and South Carolina,) numbered 10, and dated April 11th, 1867, in the defendants, the widow and children of the intestate, as whose property, by proper proceedings, it was ordered to be sold. It appears to be conceded that the indebtedness towards which, in part, the proceeds of the sale were to be applied, arose out of two sealed notes which had been given to secure the purchase money of the said premises. As the Constitution, by the 32d Section of the 2d Article, withholds the right of homestead in property sold to meet the obligations “ contracted ” for its purchase, if the claim of these defendants cannot be sustained on the ground set forth in the Circuit decree, it must fail.

It is not necessary to inquire as to the effect of a homestead *605allowed by the said order so far as relates to the duration of any exemption granted under it, for in regard to the property directed to be sold by the decree of April 22, 1868, no order had been previously made in any way conferring it. The naked question before us is, as to the effect of the said military order at the time the sale was directed by Chancellor Johnson. The order of General Canby (No. 164) only modified the character of the exemption, and in no other way changed or qualified the previous order of General Sickles to which it related.

It cannot be claimed that, by the force of its own operation, it forever exempted from sale the property in terms reserved by it, for if this concession is made, it would stand as the permanent law of the land, overriding the Constitution and all Acts which the wisdom of the Legislature might have provided in regard to homesteads. Suppose the Constitution of April, 1868, instead of permitting them, under certain restrictions and limitations, had entirely forbidden their existence, could it be contended for a moment that at a sale made after this instrument took effect, they could still be claimed and exacted by virtue of the Military Order No. 10? If it can, then the same validity must be extended to all the other provisions of the same order, and the pretence that it could do this would certainly be remarkable, at least for its boldness.

The military order in question was only temporary in its duration. Its provisions are so expressed on its face, in the most unmistakable terms, as follows : “ They will continue in force, with such modifications as occasion may require, until the civil government of the respective States shall be established in accordance with the requirements of the government of the United States.” At the time when the sale was made there was no right of homestead existing save that provided by the Constitution and the Act of September 9, 1868, entitled “ An Act to perpetuate the homestead,” (14 Stat., 19.) The first, in express language, provides “ that no property shall be exempt from attachment, levy or sale for taxes or for payment of obligations contracted for the purchase of said homestead, or the erection of improvements thereon ;” and the third Section of the Act referred to repeats the prohibition almost in the same language. The constitutional inhibition would have been sufficient, but the Legislature, that it might not be lost sight of by those who would be called on to execute the Act, again brought it to their notice. The judgment of the Circuit Court treats the right of these defendants as a vested one under the order. Such is not the fact. By the terms of the *606order, “the excepted property of the defendant is to be ascertained by the Sheriff, or other officer enforcing the execution, who shall describe the same and report it to the Court in each case.” No title could therefore vest until the extent and character of the property designated as the homestead had been laid off and reported to the Court. This was not done in the case here, and before the sale was ever directed the effect of the military order was superseded by the Constitution. If the examination of the case had required us to hold that the provisions of the said order, by their own force, conferred rights on the person in whose favor they were designed, it would at least be very questionable whether these defendants, the widow and children, could avail themselves of a reservation which is to be made on the sale “of the property of any defendant who has a family dependent on his or her labor.”

It is ordered that the order of the Circuit Judge dismissing the motion for a confirmation of the sale of the house and lot described in the pleadings be set aside, and that the case be remanded to the Circuit Court for the County of Newberry, for the proper orders to carry out the judgment now pronounced.