
    Fry v. Smith.
    
      Homestead exemption — Judgment creditor’s lien does not preclude debtor’s allowance in lieu of homestead — From accounts receivable, etc.
    
    A judgment creditor, by a suit in equity to subject the proceeds of his debtor’s bills and accounts receivable and the appointment of a receiver for the purpose of collecting them, does not acquire such lien as will preclude an allowance out of such proceeds to the debtor in lieu of a homestead, the debtor being the head of a family from the commencement of the proceeding, and not the owner of a homestead at the time of the distribution of such proceeds.
    (Decided November 28, 1899.)
    Error to tlie Circuit Court of Tuscarawas county.
    Fry filed his petition to subject the proceeds of sundry bills and accounts receivable of Smith to the satisfaction of a judgment which he had recovered against him. A receiver was appointed to collect the proceeds who made collections thereof, and Smith, as the head of a family, demanded an allowance out of the proceeds of five hundred dollars in lieu of a homestead. The only question for determination here is. whether the circuit court erred in sustaining his demand upon the following facts which it found:
    “This day this cause came on to be heard by the court upon the pleadings and an agreed statement of the facts. And the court having been requested by plaintiff and defendant, T. J. Evans, with a view of excepting thereto, to state its conclusions of fact and law separately, does find and state the facts herein as follows:
    First. That Robert Smith and Clara Smith are husband and wife living together, and are now and for many years last past have been residents of the state o.f Ohio.
    
      Second. That at the time of the commencement of this action, the said Robert Smith owned a homestead, in which he lived, on which there were mortgage liens, signed by both him, the said Robert Smith, and his wife. That afterward the said homestead was sold in a foreclosure proceeding against him and his wife, and that the proceeds did not pay all the liens against it, that precluded the allowance of a homestead. That said homestead was sold before said Robert Smith made and filed herein his demand for the allowance of the sum of §500 herein in lieu of a homestead.
    Third. That no homestead or an allowance in lieu of a homestead were ever set off to the said Robert Smith or his wife, in any proceeding.
    Fourth. That at the time the said Robert Smith filed his application and demand for an allowance of §500 in lieu of a homestead herein, he was not, and has not since been, and is not now the owner of any homestead, nor is his wife.
    Fifth. That the funds in the hands of the receiver in this cause, out of which. §500 is claimed in lieu of a homestead, are the proceeds of collections made upon certain book accounts of the said' Robert Smith, which collections were all made and in the hands of the receiver, when the answer of said Robert Smith was filed in this case, and that said Robert Smith never made any selection of, or claim or demand for, said funds or accounts previous to the filing of said answer in this cause.
    Sixth. That the said Robert Smith remained the owner and occupier of a homestead until after the said book accounts were collected and all in hands of said receiver, and that he remained the owner and occupier of said homestead up and until within a few days prior to the time of the filing of his answer herein.
    Seventh. The receiver herein had filed no report and no order of distribution had been made by the court previous to the filing of the answer of said Robert Smith herein. And upon the foregoing state of facts the court, finds as a matter of law that the said Robert Smith is entitled to demand and receive out of the funds in the hands of the receiver in lieu of a homestead, the sum of $500, or so much thereof as shall remain in his hands after payment of costs and expenses. And it is therefore ordered, adjudged and decreed by the court that the said receiver, out of the money in his hands, pay first the costs of this suit, and that he next pay to the said Robert Smith the sum of $500 in lieu of a homestead as above found, or so much thereof as there are funds in his hands to apply thereon.
    
      Helea & Greene and G. W. Reed, for plaintiff in error.
    
      W. B. Stevens and P. S. Olmstead, for defendant in error.
   By the Court:

The judgment of the circuit court is in accordance with the settled interpretation of the statute in question. Niehaus v. Faul, 43 Ohio St., 63; 54 Ohio St., 664, affirming Carter et al. v. Ross, 8 C. C. Rep., 139, upon grounds stated in the opinion of the circuit court.

The right of the debtor to the exemption is as strong when his property is being sold and its proceeds distributed under the forms of equity as when that result is being reached by legal process. Comer et al. v. Dodson et al., 22 Ohio St., 615.

Judgment affirmed.  