EXEMPTION.

[Franklin Circuit Court,

January Term, 1894.]

Stewart, Shauck and Shearer, JJ.

#### †Carter et al. v. Ross, Sheriff, Etc.

Debtor May Claim Chattels in Lieu of Homestead After Foreclosure.

A debtor, the head of a family, may demand chattels in lieu of a homestead when a decree foreclosing his equity of redemption in a homestead has been made before the levy of execution upon such chattels, and when the homestead has been sold under such decree before their sale.

Error to the Court of Common Pleas of Franklin county.

The plaintiffs in error seek a reversal of the judgment of the court of common pleas sustaining a demurrer to their petition.

In their petition they allege that they are and were at the time of the matters of which they complain, husband and wife, living in and being residents of Franklin county, Ohio; that the defendant, James Ross, then was and yet is the sheriff of said county; that on October 10, 1889, Andrew Carter executed to the defendant, Deliah Worthington, his promissory note for $3,057.20, and to secure its payment, he and his wife executed their mortgage deed for sixteen acres of land in- said county, it being their homestead, and the only real esate owned by them; that the conditions of said mortgage having been broken December 19, 1892, the mortgagee filed her petition on said note and mortgage for a personal judgment against Andrew Carter on the note, and for the foreclosure of the mortgage; that on February 7, 1893, judgment and decree were entered as prayed for, and by the terms of the decree the equity of redemption was cut off if payment of the judgment should not be made within three days of that date. Such payment not being made, an execution and order of sale were issued. The *334real estate was appraised at $1,000.00, and it was sold under the order oa September 16, 1893, for $1,705.00, which sale was affirmed September 26, 1893. On July 28, 1893, the sheriff levied his execution on chattels of Andrew Carter, which are described in the petition, being live stock and agricultural implements, and on September 18, 1893, he sold them for the sum of $376.85. On September 9,1893, the plaintiffs made demand in writing on the sheriff, and on the execution! creditor, notifying them that said chattels were by them demanded and selected as a part of their exemptions of $500.00 in lieu of homestead, and that they demanded that they be held by them as exempt from levy and sale, and on September 18, 1893, after the sale of their homestead, but before confirmation of the sale of the homestead, and before the sale of the chattels, they repeated the demand.

Said chattels were the only property owned by the plaintiffs except their specific exceptions, and a buggy of the value of $50.00. The defendants refused to comply with such demands, and sold the chattels, whereby the plaintiffs were damaged in the sum of $600.00, for which they ask judgment with interest.

†

Th-is judgment was affirmed by the Supreme Court, April 28, 1896, on the grounds stated by the circuit court in this opinion: No further report. 5.4 O. S., 664.

Shauck, J.

The general question is whether Andrew Carter was, in view of the facts alleged, at the time of these demands, or either of them, the owner of a homestead in such sense as to preclude the allowance of an exemption in chattels in its stead.

Two propositions are made in support of the judgment below: (1) That the question is to be determined by .the circumstances and the condition, of the parties at the time the sheriff levied his execution upon the chattels which, though after the decree of foreclosure and the three days allowed by the terms of the decree for the payment of the ámount found due, was before the sheriff sold the homestead under the order; and (2) that Carter continued to be the owner of the homestead until confirmation of the sale thereof made by the sheriff, which was after the sale of the chattels and after the last demand of the exemption.

It is clear from the provisions of sec. 5440, Rev. Stat., that out of the proceeds of the judicial sale of the homestead of the head of a family, he may receive in lieu of it $500.00, unless the entire proceeds are required to pay liens which preclude such allowance. This is true, even though, if the second proposition is sound, he continues tb be the owner of the homestead until its sale is confirmed. Why he should not have the right, under the same circumstances, to demand the exemption out of any other property not subject to liens which preclude its allowance is not apparent. The foundation for the distinction; claimed, not being found in the reason of the law, must be sought in its provisions.

In the view of counsel for the defendant it is found in the provisions of sec. 5441 that the person of the prescribed social condition, who is not the owner of a homestead, ‘ ‘may in lieu thereof hold exempt from levy and sale real or personal property to be selected by such person, his agent or attorney, at .any time-before sale, not exceeding five hundred dollars in value, ’ ’ etc. And it is said, that the effect now claimed for this provision was given to it in *Nixon*v. *Van*Dyke, 1 Ohio Circ. Dec., 364, and *Solders*v. *Lane,*40 O. S., 345. But in each of those cases the exemption in lieu of homestead was denied because the defendant was not, at the time of the levy, the head of a family — he did not belong to the class of persons in whose favor the statute created the exemption. In the case before us Carter was at the time of the execution of the mortgage, and he continues to be, the head of afamily. The *case of Wildemuth v. Koenig,*410. S., 180, is authority for the conclusion that one who at the time the lien of the creditor attaches is the head of a family, may acquire the right to have a homestead exempted by subsequently changing his relation to his property.

Nor does the conclusion of the court of common pleas derive support from *Dwinnel*v. Edwards, 23 O. S., 603. That case decides only that where husband *335and wife live together upon a homestead owned by'her, neither can demand air-allowance in lieu of homestead, though he may own none.

*Edmond B. Dillon,*for plaintiff in error.

*L.J. Critchjield, contra.*

Remembering that Carter is clearly within the class of persons to whom the statute allows the exemption, and that the statute is to be liberally construed in-his favor, it seems rather technical to say that he was the owner oí a homestead after his homestead had been sold by the sheriff pursuant to the order of the court. Certainly his right to redeem continued until the sale was confirmed. But the right in one to redeem is the right to repurchase that which formerly belonged to him. In strictness it implies that his title has passed to another, although he may still have a right in respect to the property in virtue of his former ownership. A.s to him, the order of confirmation had no other effect than to establish the regularity of the proceedings and to end his right to redeem. It related-back to the sale made before his last demand, and gave to it a conclusive effect. When the sheriff’s deed was finally, executed, it, by relation, took effect as of the day of the sale, and divested Carter of all the interest he then had. *Lessee*v. Longworth, 11 O., 252.

In *Bartram*v. McCraken, 41 O. S., 377, it is determined that although the homestead of a debtor is incumbered beyond its value, he cannot demand an allowance in its stead; because the statute does not charge the sheriff with the duty of ascertaining the existence, validity and amounts of such liens. In the case before us, prior to the levy on the chattels demanded, the court of common-pleas had ascertained the amount of the lien, and the premises has been appraised-at an amount less than the lien so found.

Sections 5440 and 5441, Rev. Stat., relate to the same subject. They make provisions for the protection of families out of the property of the heads of families. We think they warrant the demand made in this case, when construed by the liberal rules stated and applied in *Comer*v. Dodson, 22 O. S., 615; *McConville*v. *Lee,*31 O. S., 447 and *Sears*v. *Hanks.*14 O. S., 298.

The judgment will be reversed and the demurrer overruled.