
    Niehaus v. Faul.
    
      Homestead — Allowance in lieu of — Section 5441 Revised Statutes.
    
    P., being the owner of a tract of land,-and entitled to a homestead therein, mortgaged the same. She also owned other land subject to another mortgage made by her. Both mortgages were foreclosed and the lands ordered sold to satisfy the same,at the instance of a judgment creditor, who sought to subject her equity of redemption in both tracts to the payment of his judgment, she having no other property to satisfy the same. Before sale, P. demanded an allowance of $500 in money out of the surplus proceeds of such sales, on the ground that she was precluded from having a homestead by metes and bounds, by reason of her mortgages. The homestead tract was first sold, the sale was confirmed, but the surplus under order of distribution, after the payment of prior liens, was insufficient to satisfy this demand. Afterward the other lands were sold, leaving a surplus, after satisfying the mortgage thereon. Held:
    
    1. The right to demand an allowance in -lieu of a homestead under Rev. Stats., section 54:4,1, out of the proceeds of the second sale, is to be determined by the state of facts at the time the surplus arising from such sale was finally disposed of by the court.
    2. That by the sale and confirmation of the homestead tract, R. was divested of her ownership therein, and was no longer the owner of a liome- • stead, and if the surplus, arising from the first sale, was insufficient to satisfy her demand, she was entitled under section 5441 to have the same satisfied out of the surplus arising from the sales of the other lands, though not entitled to a homestead therein.
    Error to the District Court of Clermont county.
    July 7, 1879, plaintiffs, Neihaus and Klinckhamer, obtained a judgment against Barbara Paul for $413.57 and costs. She was the owner of four tracts or lots of land; the first, second, and third being in Batavia in said county and the fourth lying outside of said village; those in Batavia being subject to a mortgage made by her to one Brimmer for $500, and. the fourth tract to another mortgage by her to Brimmer for $600, the former dated December 14, 1878, and the latter October 23, 1878.
    The plaintiffs, as judgment creditors, commenced their action to subject the equity of redemption of Bai’bara Paul, in all of said tracts,-to the satisfaction of their judgment against her, making the mortgagee a defendant; who answered, setting up his claims. At March term, 1881, a judgment was rendered that Brimmer’s mortgages were paramount to plaintiffs’ judgment on said tracts, and ordering them sold, the first, second, and third to satisfy the $500 mortgage and the fourth to the $600 mortgage, balance, if any, after paying costs, to be applied on plaintiffs’judgment. Under this order the property was sold, but this sale Avas, on motion of defendant, set aside. Upon supplemental petition the decree in Brimmer’s favor was modified as to amount due him and an order of sale again made in his favor.
    June 8, 1882, and before sale, Mrs Paul filed an application for an allowance of $500 out of the proceeds of said real estate, in lieu of a homestead after paying the mortgage liens, on the ground that under said mortgages she was precluded from claiming a homestead by metes and bounds.
    June 14, 1882, all of said tracts having been sold, she moved the court to set aside the sales.
    July 8,1882, the demand for a homestead was passed upon by the court, which found the following facts :
    “ This day this cause came on to be heard on the motion and demand of the defendant, Barbara Eaul, for the allowance out of the proceeds of real estate sold in this case of the sum of five hundred dollars in lieu of a homestead. And the court having heard the evidence and argument of counsel and being fully advised in the premises does find that there is a dwelling-house and outbuildings on the fourth tract in the pleadings in this case described; that at the date of the levy of the execution and at the date of the judgment on which said execution was issued the said Barbara Eaul was occupying said fourth tract as and for a homestead. And the court further finds that there is a dwelling and outbuildings on the first, second, and third tracts in the pleadings in the case described, and that after the rendition of judgment against her in favor of the plaintiffs, and the issuance and levy of execution upon said judgment, the said Barbara Eaul abandoned the fourth tract and removed and took possession of the said dwelling-house and outbuildings on said first, second, and third tracts and has ever since continued to l’eside thereon. And the court further finds that at the date of the rendition of said judgment and the issuance and levy of said execution the defendant, R. M. Brimmer, held deeds for the whole of said real estate, and that the execution was levied on the whole thereof, and that this court has since in a proper proceeding, to which the said Barbara Eaul and the said R. M. Brimmer and the plaintiff’s were parties, declared the said deeds, though absolute on their face, to be mortgages, and has determined the amounts due thereon from the said Barbara Faul to the said R. M. Brimmer.”
    Upon this state of facts, the court finds that said Barbara is precluded from having a homestead in either of said tracts by reason of the Brimmer mortgages, and is entitled to the $500 out of the fourth tract, subject to Brimmer’s mortgage, but not out of the first, second, and third tracts.
    On the same day, July 8, 1882, the sales of the tracts last named were set aside and of the fourth tract confirmed.
    A distribution of the proceeds of the fourth tract was then ordered, which, after payment of costs, taxes, and the Brimmer mortgage thereon, left $10.89 to apply on the homestead claim.
    No appeal was taken from this order, but Barbara Faul appealed from the judgment disallowing her money in lieu of a homestead in the first, second, and third tracts. They were afterward sold and, after satisfying prior liens, there remained $403.65 to be applied, either to plaintiffs’ judgment or to the claim for exemption in lieu of a homestead, according as the law may be. The common pleas ordered this surplus to be applied to plaintiffs’judgment.
    On appeal, the district court, upon the evidence and the law, determined that this balance of $403.65, arising out of the sale of the first, second, and third tracts, should bo applied to the claim for a homestead in preference to the judgment of plaintiff's.
    A bill of exceptions was taken, setting out all the evidence, but it is unnecessary to stake it in detail. In effect it warrants the finding of the court of common pleas, already quoted, and the further finding that Mrs. Faul was the head of a family, and entitled to a homestead under the statute, unless she is deprived of it by reason.of the facts stated.
    
      Ashburn § Iiulick, for plaintiffs in error.
    
      A. T. Gowen, J. C. McMath, J. T. Parrott, and Wm. Pease, for defendants in error.
   Johnson, J.

The facts show that at the time Mrs. Faul made the mortgages, one on the fourth tract and one on the three lots, and at the time she contracted the debts to plaintiffs, as well as when proceedings were instituted to subject her equity of redemption to the satisfaction of the plaintiffs’judgment, her homestead was on the fourth tract outside of the village of Batavia, and that after judgment and levy she abandoned the fourth tract, and adopted'as a homestead a dwelling-house on one of the three lots in Batavia, all of which were afterward sold as one tract. As all the tracts were covered by mortgages, precluding her from demanding a homestead by metes and bounds in either tract, and as only $10.89 was realized to her out of what was her actual homestead on the fourth tract, her claim is to the surplus money arising from the village property in preference to the judgment creditor.

This application is based upon Rev. Stats., section 5410, which is as follows: “When a homestead is charged with liens, some of which, as against the head of the family, or the wife, preclude the allowance of a homestead to either of them, and others of such liens do not preclude such allowance, and a sale of such homestead is had, then after the payment, out of the proceeds of such sale, of the liens so precluding such allowance, the balance, not exceeding five hundred dollars, shall be awarded to the head of the family, or the wife, as the case may be, in lieu of such homestead, upon his or her application, in person, or by agent or attorney.”

The district court determined this case under Rev. Stats., section 5441, which provides : “Any resident of this state who is the head of a family, and not the owner of a homestead, may 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, in addition to the amount of chattel property otherwise by law exempted.”

If Mrs. Paul, who was the head of a family, permanently abandoned her homestead on the fourth tract before sale of the same, and fixed her home elsewhere, she was no longer entitled to demand under Rev. Stats., section 5440, a money allowance in lieu of a homestead out of the proceeds afterward arising from a sale thereof. After such abandonment her right to such allowance out of the pi-oceeds of that tract must arise, if at all, under the provisions of Rev. Stats., section 5441.

Her right to such surplus must be determined by the state of facts existing when the fund is finally disposed of by the court.

And this is equally true of the fund arising from the subsequent sale of the other tracts lying within the village of Batavia. Cooper v. Cooper, 24 Ohio St. 488; Jackson v. Reid, 32 Ohio St. 443.

Whether the court was right in giving her the $10.89 arising after satisfying the mortgage of the fourth tract, seeing that she had before such sale permanently abandoned the same, may well be doubted; but as there was no exception to or appeal from this order, and no error now assigned, we need not determine it. When the property in Batavia was sold she had ceased to be the owner of a homestead in the fourth tract. She had lost her right therein either by abandoment or by the sale. In either case, and by which is immaterial, she was not the owner of a homestead in the fourth tract.

If she had acquired a new homestead in the Batavia property subject to the mortgage thereon, she was entitled to the surplus under section 5440 of the Revised Statutes.

But if not, and the abandonment or sale of the fourth tract had divested her, as we hold it did, of a homestead therein, then she was not the owner of a homestead, and under section 5441 was entitled to this surplus.

Brimmer might have foreclosed the mortgage on the fourth tract, and divested her of a homestead therein, and afterward foreclosed the mortgage on the Batavia property. No one would doubt Mrs. Paul’s right under section 5441 to her allowance out of the surplus arising from the last sale, if the Batavia lots, after satisfying the mortgage thereon, left a surplus. Practically and in legal effect, that is what was done in this case. Although done in one action there were two foreclosures and two sales, with separate judgments and confirmations upon each mortgage.

At the time when this fund was in court for distribution Mrs. Paul had ceased to be the owner of a homestead in the fourth tract, and was entitled to an allowance of her exemption out of the surplus proceeds arising from the sale of the Batavia property.

This surplus, together with the amount she received from the fourth tract, does not satisfy her demand.

The judgment of the district court is affirmed.  