29 Ohio St. 523 | Ohio | 1876
It appears from.the agreed facts, that at the-time the premises described in the petition were mortgaged, they constituted no part of the family homestead of the defendants. They were not in the actual occupancy of them, and for aught that was shown, had never been. The question therefore arises, “ Has the wife of a mortgagor of premises, not occupied as a homestead until after the mortgage is-executed and delivered, she not-having joined in the same,, a right, upon foreclosure of the mortgage and sale thereunder, to have a homestead set off in the premises mortgaged ? ”
The common pleas answered'this question in the negative- and the district court in the affirmative. Its proper solution depends upon the construction to be given to the provisions of the homestead act. 2 S. & C. 1145; 66 Ohio L. 48; 70 Ohio L. 51. The defendant’s counsel contend that this right is secured to the wife by the ninth section of that act. That section is as follows : “ No sale of any real estate-made under any mortgage hereafter executed, and which-
By the first section (66 Ohio L. 48), it is provided that the^ family homestead of each head of a family shall be ■exempt from sale on execution on any judgment or decree rendered on any cause of action accruing after the taking effect of the act. The value of the homestead ex-empted is limited to $1,000.
Section 2 makes it the duty of the officer executing the writ, on application of the debtor, his wife, agent, or attorney, .at any time before sale, if such debtor have a family, and if the lands or tenements about to be levied upon, or any part or parcel thereof, shall be the homestead thereof, to cause a homestead to be set off to such debtor. It is, by this provision, made an essential condition to the right to have a portion of the lands about to be levied on set apart as a homestead for the debtor or his family, that some part of such lands or tenements shall be the family homestead of the debtor. If the lands about to be levied on constitute no part of the family homestead, th.e officer executing the writ is not authorized to cause a homestead to be set off'. The right of the debtor, or his wife, to demand the assignment of a homestead exists only where a homestead, in fact, is about to be levied on to satisfy a judgment against such debtor.
Lands or tenements that have not been occupied as a home or dwelling-place for the family have not been impressed with the character of a homestead, and can not be •claimed as such. A sale and conveyance under a levy on
The view we have taken is sustained by the authorities-in other states having similar statutory provisions. In Smyth on Homesteads and Exemptions, 269, it is said: “ The claim of a homestead will not prevail against a mortgage signed by the husband alone before actual occupation of the premises so claimed, or before selection, when.the-statute of the particular state requires formal selection and recording after occupancy. To entitle a mortgagor to a homestead in mortgaged premises, such mortgagor must not only be the head of a family, but at the time of the-execution of the mortgage must reside with his family, and so continue to reside, on the mortgaged premises.”
To the same effect are Fergus v. Woodworth, 44 Ill. 377; Thompson v. Pickel et ux., 20 Iowa, 490; Rix v. McHenry, 7 Cal. 89 ; Gregg v. Bostwick, 33 Cal. 220 ; Lawton v. Bruce, 39 Maine, 484; Austin v. Stanley, 46 N. H. 51.
If we are correct in holding that the wife, as against the-mortgage, was not entitled to a homestead, it follows that section four of the amendatory act of 1869 has no application to the case. That section confers on the debtor or huswife the right to a part of the proceeds of the sale only ■where the homestead is charged with liens, some of which do not preclude the allowance of such homestead. There-are no such liens here. There was no right to a homestead against either the lien for taxes or of the mortgage. Nor has section eight, misnumbered three, of the act, as amended in 1873 (70 Ohio L. 51), any bearing upon the question. If the wife was not entitled to a homestead, as against the mortgage, she is not entitled to the mortgage fund, nor any quart of it needed to pay off the mortgage debt.
The.statute authorizing her to select, in case there is no homestead, proquerty, personal or real, of the value of five-
In reaching this conclusion,-we have not been unmindful of the fact, that the laws exempting a family homestead and other property from forced sale to pay the debts of an improvident debtor, originated in a salutary and humane policy, and that they should receive such construction as will,accord with the beneficent object of their enactment. But the language of the statute being clear, we are not at liberty to enlarge its import, or strain its meaning, in order to bring within its operation, a case clearly without its provisions.
Motion granted, judgment of the district court reversed, and the order of the common pleas affirmed.