WIFE NOT ENTITLED TO EXEMPTION IN CHATTEL MORTGAGED PROPERTY.

Court of Appeals for Henry County.

#### Patrick Donnelly v. William Lulfs et al.

Decided, December 12, 1918.

*Husband and Wife*— Exemption *in Lieu of Homestead,*— Hot *Allowable to Wife from Property Covered by Chattel Mortgage.*

The wife is not entitled to five hundred dollars in lieu of homestead out of proceeds of sale on foreclosure of chattel mortgage given by husband on his property.

*Donovan & Donovan,*for plaintiff in error.

' *George S. May, O. E. Mosier, Fred Gribbell*and *Donovan é Warden,*for defendants in error.

Hughes, J.

There was taken into the custody of the receiver appointed in this cause, being an action to foreclose a chattel mortgage, the chattel property of the defendant Lulfs and, at a sale- ordered by the court, the property sold for $941.16.

*584There were three chattel mortgage liens and one judgment with execution lien, against the property. The wife, who signed none of the notes or chattel mortgages, demands $500 in lieu of homestead as exempt.

It is conceded by all parties that she is entitled to this exemption, if the liens above mentioned do not foreclose the same. It is also conceded by the parties that the first lien is Rothenberger Brothers chattel mortgage for $61.90. That the second lien is The International Harvester Company’s chattel mortgage for $274.60. That the third is the judgment and execution lien of The Corn City State Bank of .Deshler of $240.42; and that the fourth lien is Patrick Donnelly’s chattel mortgage of $929.20.

The question presented to this court is whether or not the wdfe is entitled to an exemption in lieu of homestead, notwithstanding her husband has executed chattel mortgages to the full value of the property.

The court below ordered the distribution of the fund in the following,order: First, the payment of costs. Second, $500 to the wife of the defendant Lulfs in lieu of a homestead, and the balance to be distributed to the defendants according to priority of their liens as above set forth.

We find no authority which would prevent a husband from making an absolute conveyance or incumbrance of his chattel property without joining with him in the transaction, his wife. Neither do we find any authority which would preserve to her in such circumstances, any of such chattels as exempt from the operation of such mortgages.

We do not here make any reference to any particular items of chattel property that are particularly exempted, because it is conceded by all parties that none of the chattels involved herein were of such character.

We are constrained, therefore, to hold that this allowance to the wife, prior to the payment of the chattel mortgage, was erroneous. 29 O. S., 523, 25 O. S., 549.

It will be observed, however, that the third lien, which .is superior to the Patrick Donnelly chattel mortgage lien, is the Corn City State Bank’s judgment lien of $240.42.

*585There can be no question but that the exemption claim of the wife in this case is superior to this judgment lien. The distribution should be, therefore, as follows:

First. The payment of costs.

Second. The claim of Rothenberger Brothers.

Third. The claim of The International Harvester Company.

These three items should then be added, and taken from the proceeds of sale. The Corn City State Bank judgment would then be entitled to participate in any remainder after the $500 in lieu of homestead was set aside to the wife of the defendant Lulfs. The claim of Patrick Donnelly, however, being for more than enough to consume the entire balance of the proceeds of sale and being superior to the claim for this exemption, there would be no fund left out of which any amount could be paid to Mrs. Lulfs. The amount then remaining should be applied to the Corn City State Bank judgment, and the balance should then be paid to the Patrick Donnelly claim. AVe make no further observation regarding other claims because it is apparent that this distribution more than consumes the proceeds of sale.

To clarify this opinion, it may be illustrated as follows: Assuming the costs to be $50; Rothenberger’s claim $61.90; The International Harvester Company’s claim $274.66, these being the first claims paid in their order and amounting to $386.50; deducting this amount from the selling pric.e of- the property, $941.60, would leave $554.66. Taking from this amount, the $500 in lieu of homestead, would leave $54.66, the amount to be applied on The Corn City State Bank judgment, and this item of $54.66, added to the distribution made in the three first items would amount then to $441.16 which, taken from the proceeds of sale, would leave $500 to be paid on the Patrick Donnelly claim. In other words, assuming that the items of costs and the amounts of the various claims are stated correctly, the distribution would be as follows: Costs, $50; Rothenberger Brothers, $61.90; International Harvester Company, $274.60; Corn City State Bank, $54.66; Patrick Donnelly, $500. See, 31 O. S., 273.