Gibson v. Mundell

Boynton, J. 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 which526 .shall not have been executed by the wife of such debtor, if he have one, shall in any manner affect the right of said ■debtor’s wife or family to have a homestead set off under the provisions of this act.” It was not the object of this provision to create in the wife a right to a homestead in premises not occupied as such. Nor does it confer on the wife the right, by occupying the mortgaged premises with her husband as a homestead at the time of the sale under the foreclosure of the mortgage, to select a homestead in the premises as against the mortgagee, his mortgage ante•dating the occupancy of the premises as a homestead. Its ■object is rather to preserve and confirm the rights of the wife and family than to create new ones. It declares that no sale under a mortgage to which she was not a party shall in any manner affect her right to- have a homestead set off, under the provisions of the act of which that section constitutes a part. Its purpose seems to be plain and obvious, to guard and protect the existing rights of the debt- or’s wife and family, whatever they may be, from, any injury supposed to result, or which independently of the statute might result, from a sale under a mortgage not executed by her. What those rights are, it does not undertake to determine. They are to be ascertained and defined by reference to all the provisions of the statute, in view of her relation to the premises mortgaged at the time the mortgage takes effect. If the homestead right has then attached, it continues, and has all the effect and operation of a prior incumbrance, unless waived. But if, before it attaches, the husband conveys the premises by mortgage, such mortgage can not be defeated, nor its lien impaired, by the sub- . sequent selection of the mortgaged premises as a homestead. The refusal or failure of the wife to join in the execution of the mortgage, has the effect, and that only, to save to her such rights as she then has in the property mortgaged. If the premises have been selected, and are then occupied .as a homestead by the family, her right upon foreclosure -of the mortgage to have a homestead set off" remains un.aftected by the sale. In such case the right to the ex527 -eruption having attached before the mortgage is given, the rights of the mortgagee are inferior and subordinate to the homestead right -of the wife. The construction contended for by counsel for the defendant would not only do violence to the plain provisions of the statute, but injustice would not infrequently result, if premises, vacant when incumbered by mortgage, could be selected as a homestead and the mortgage sale deferred, and the payment of the debt consequently postponed until the homestead right terminates .or expires. Such construction finds no support in the .statute. 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 [528] the lands in controversy at the "date of the mortgage would have passed the title unaffected by any homestead right, as-they were then unoccupied. And it can not be true that the owner may not sell or incumber that which may be seized by final process against him, and subjected to tie-payment of his debts. 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 five529 hundred dollars, confers no right to select where the debtor himself could not. As was said in Haines v. Tiffany, 25 Ohio St. 554, the selection is made, in all such cases, in right of the debtor, and when he has disposed of the property, the right does not exist. 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.