¶1dissenting.
¶2The facts in this case as disclosed by the record are, that Dooly, the plaintiff, levied his fi.fa. on the land as the property of Eorsyth, the defendant in fi. fa., in satisfaction of a judgment dated the 29th day of October, 1861, proved the defendant, Eorsyth, to have been in possession of the land subsequent to the date of the judgment, and closed his case. The claimant introduced in evidence a deed from Eorsyth, the defendant in execution, dated March 3d, 1863, to himself for the land in dispute, and an exemplification from the Court of Ordinary, setting apart to him this land as a homestead. The only question made and decided in the Court below, and the only question made on the argument before this Court was, whether Isbell could claim a homestead in the land as against Dooly’s judgment lien, upon the statement of facts before recited. There was no question made or decided in the Court below, and none made before this Court as to the statutory bar of four years possession. There is no evidence in the record as to the length of time the claimant had been in possession of the land, or whether he had ever been in possession of it, and yet the majority of the Court wholly ignore the question decided in the Court below upon which error is assigned here, and have proceeded to dispose of the case upon an assumed state of facts which do not appear in the record, and upon a point which was never raised or decided by the Court below, nor discussed before this Court. The majority of the Court assume in their judgment, that the party claiming the homestead in the land had been in possession of it for four years as a bona fide purchaser for a valuable consideration. There is no evidence in the record as to the length of time Isbell was in possession of *346the land, or whether he was a bona fide purchaser of the land from Forsyth, the defendant in execution, for a valuable consideration or not. To have constituted Isbell a bona fide purchaser of the land as provided by the 3525th section of the Code, three things were necessary to have been proved on the trial. First, that he did not have notice of the existence of the judgment against Forsyth at the time he purchased the land from him, (for if he did have notice of it, the legal presumption is, that he purchased the land subject to the lien of the judgment, and paid that much less for it); second, that he paid a valuable consideration for the land; and third, that he had been in possession of the land as such bona fide purchaser for a valuable consideration, for four years.
¶3This evasion of a grave question made and decided in the Cotírt below, and disposing of the case upon an assumed state of facts, not made by the record is, to say the least of it, setting a very bad example for the other Courts in the State to follow. Upon the facts of the case, as made by the record, my judgment is, that Forsyth, the defendant, would not be entitled to a homestead in the land, as against the plaintiff’s judgment, which is dated the 29th of October, 1861, for the reasons stated in Hardeman vs. Downer, decided during the present term; second, because Isbell, who purchased the land from Forsyth in March, 1863, has no legal estate in the land which entitles him to a homestead thereon as against the plaintiff’s judgment lien upon the land, which was created and attached thereto whilst Forsyth was the owner thereof. In no view of this homestead question, in my judgment, can a judgment debtor be allowed to divide out his estate, by selling the same to different purchasers, and each purchaser thereof be entitled to a homestead in each tract conveyed by the judgment debtor, and the judgment debtor himself to have a homestead in that portion of his land not conveyed, and thus absorb his entire estate by the multiplicity of homesteads, thereby defeating altogether the claims of his judgment creditors. The pertinent inquiry is how many homesteads can a judgment debtor have allowed out of his estate *347against which no judgment can be enforced ? This question was properly made by the record in this case, but the majority of the Court have thought proper to dispose of the case without answering the question.
¶4I am of the opinion the judgment of the Court below should be reversed.