
    Hill v. Myers et al.
    
      Decree subjecting separate property of a married woman— Occupation of same by her for a homestead before issuing order of sale — Application of homestead act to lands in co-tenancy.
    
    1. Where a married woman living with her husband, charges her separate property for the payment of a note executed by her and her husband jointly, if he has no homestead, she will be entitled, in an action on the instrument, to an assignment of a homestead in such property, when occupied by her as a family homestead before the levy of an' execution, or before an order of sale was issued upon a decree specifically subjecting the property to the payment of the claim of the judgment creditor.
    :2. Where such separate property consists of an undivided interest in land, and 'there has been, without the' knowledge of the judgment creditor, a voluntary partition between the tenants in common before levy of the execution or issue of the order of sale, the wife will be entitled to a homestead in the interest set off to her in severalty, subject to the creditor’s right, upon proper issues made, to inquire and determine as to the justice of the partition.
    (Decided January 8, 1889.)
    Error to the Circuit Court of Hamilton County.
    
      On December 2nd, 1880, the defendant John Mye^s was indebted to the plaintiff Ezra A. Hill, in the sum of nine hundred dollars. His wife Tabitha Myers, the other defendant, was the owner at that time of an undivided two-tenths of a tract of land in Hamilton county, Ohio, held in common by her and her husband’s brothers and sisters. On the above named day, the husband and.wife joined in executing to the-plaintiff their promissory note for the amount so due, payable in three installments. Upon non-payment of the note according to its tenor, the plaintiff commenced his action in the court of common pleas against the makers, and in an amended petition, wherein was described by metes and bounds the lands above referred to, sought to have the two-tenths interest in the lands owned by Tabitha Myers subjected and applied to the-payment of the note. In June, 1883, a judgment, upon appeal, was rendered by the district court, finding:
    
      “ That said Tabitha Myers made and executed the obligation set out and described in the petition and amendment thereof, and intended, and did thereby charge her separate estate, consisting of the premises described in the plaintiff’s petition, with the payment of the amount of said obligation, and that the plaintiff became by virtue thereof entitled to have the same subjected and applied to such payment. That there is due to the plaintiff upon said obligation, the sum of $1,083.60, with eight-per cent, interest thereon from the 20th of June, 1883.
    Wherefore it is considered that the plaintiff recover judgment against the said Tabitha Myers, charging the said premises .with the payment of said sum and interest, and it is ordered and adjudged that the said Tabitha Myers pay or cause to be paid to the said Ezra ‘A. Hill, the. said sum of' $1,083.60, with interest as aforesaid, together with the costs of suit herein incurred and expended, within thirty days from the entry of this decree, and in default thereof that the sheriff of Hamilton county proceed to sell her separate estate in said premises as described in'said petition as upon execution at law, and that an order of sale issue therefor upon the precipe of the plaintiff’s attorneys.”
    The defendants filed their petition in error to reverse the-judgment, and upon bond, suspended its execution. The supreme court affirmed the judgment, and remanded the ease to the court of common pleas for execution.
    An order of sale being issued by the court of common pleas, and a motion to set aside the same being overruled, Tabitba Myers moved the court for an allowance of a homestead in the premises described in the order of sale, which motion for the allowance of a homestead the court ordered ovex’ruled, whereupon she appealed to the circuit court.
    On appeal the circuit court ordered and adjudged as follows :
    
      “ This day this cause came on to be heard on the appeal of the said Tabitba Myex’S froxxx the order of the coxxrt of common pleas overruling her motion for an allowance of a homestead in the premises described in the order of sale, the motion of the said defendants, the agreed statement of facts, the pleadings and evidence, and was argued by counsel, and upon consideration the court finds the following facts : That after the affirmation by the supx’eme court of the judgment of the district court in this case, in the latter part of December, 1885, and the announcement of the decision thereon, counsel for plaintiff, informed counsel for defendant of such affirmation, and inquired of him whether or not an ox’der of sale should be issued, to which defendant’s counsel replied that ‘ It better not be done,’ and requested delay upon statement that effort was being made to raise the money by loan for the payment of the decree ; that in pursuance of this request plaintiff’s coxxnsel did not issxxe any order of sale until - May, 1886 ; that during the interval defendant’s counsel informed plaintiff’s counsel that the obtaining of the loan had been delayed, but was expected to be obtained ; and that, in consequence of this statement, the issxxing of the order had been delayed; that just previous to the issuing of the order of sale, defendant’s counsel informed plaintiff’s counsel that the loan could not be had, and that he might proceed with the sale; that, in fact, defendant had made no effox-t during the period of this delay to obtain the loan, and had not expected to get one.
    “ The eoux’t further finds that, pending these proceedings, without application to the court or the knowledge of the plaintiff or his counsel, the defendant entered into an agreement for a voluntary partition with her co-tenants of the property described in the petition, whereby a tract in the northeast corner of the farm, including a small saw mill and a woodland, was set off and conveyed by said co-tenants in severalty to Mrs. Myers. And, upon that being done, the defendant, Myers, set the saw mill in operation and proceeded to cut timber suitable for a small frame house, and to construct it out of said lumber, beginning work in March and completing the house in May of 1886. And immediately thereupon defendants moved into it. Of all which proceedings of partition, improvement and occupancy of the premises neither plaintiff nor his counsel had knowledge.
    “And after the defendant had moved into the house, the notice above stated was given to plaintiff's counsel, as to the intended loan, and the order of sale was thereupon issued. And that it is by reason of the improvement and occupancy aforesaid that the defendants claim their homestead in said property, she being a married woman, living on said premises with her husband, and not being the owner of any other homestead or property.
    
      “ The court also further finds that by reason of said occupancy of said premises, and the voluntary partition thereof as aforesaid, the defendant, Tabitha Myers, has become and is entitled to a homestead in said premises assigned to her, subject, however, to the right of plaintiff in these proceedings, upon proper issues made, to inquire and determine as to the justice of the partition made, as aforesaid, between the said Tabitha Myers and the co-tenants of said property.
    
      “ Wherefore it is ordered that upon the termination of such proceeding on the part of the plaintiff, if any be instituted, or upon the expiration of a reasonable time, to be allowed by the court, the sheriff of Hamilton county do assign a homestead to Tabitha Myers, in the portion of said premises assigned to her by her co-tenants."
    To reverse this judgment of the circuit court, this proceeding is instituted.
    
      
      Bateman & Harper, for plaintiff in error.
    1. Plaintiff’s intei’est in and claim upon the property was acquired and completed by her contract and the decree of the court before any homestead and homestead right existed. Selders v. Lane, 40 Ohio St. 345; Wildermuth v. Koenig, 41 Ohio St. 180; Gibson v. Mundell, 29 Ohio St. 523; Wilson v. Scott, 29 Ohio St. 636; Gunn v. Barry, 15 Wall. 610; Frost v. Shaw, 3 Ohio St. 270; Thompson on Homestead, sec. 317 ; 42 Ohio St. 146-7; 32 Id. 440; 25 Id. 324; 24 Id. 488 ; 29 Id. 667; 38 Id. 420.
    2. The homestead was fraudulently acquired. That the defendant was enabled to acquire her homestead by the fraud practiced upon the plaintiff, is clear from the findings of the court and the agreed statement of the parties. At the time of the affirmation of the decree by the Supreme Court the premises were confessedly subject to be sold clear of any exemption for the benefit of the plaintiff, and if process had been issued and sale immediately made thereon such would have been the result. By means, however, of false representations fraudulently intended, plaintiff was delayed in his process until they could, by the improvement and occupancy of the land, place the property beyond his reach and render his process worthless. It is difficult to understand how, in the administration of justice, a transaction of this kind can be upheld and such fraud be given effect and sustained by a court of justice. Myers himself was worthless, and had given one half of the estate ordered to be sold to his wife, who had purchased the other half. Mrs. Myers, herself, owned nothing but this land, which she had pledged for the payment of this debt. If the fraud which they have practiced, therefore, is effectual, it will substantially deprive plaintiff' of relief. Burnside v. Terry, 51 Ga. 190; Pratt v. Burr, 5 Bissell, 36 ; Edmonson v. Mecham, 50 Miss. 34.
    3. The homestead can not be allowed in this case, because the interest in which it is claimed is an undivided interest- in premises held in common by Mrs. Myers and her husband’s brothers and sisters. The proceeding was instituted against the property in that form, and a decree was entered in favor of the plaintiff for its sale as two undivided tenths of a farm. The decree remains in' that form, and the only execution which plaintiff can have thereon is for the sale of two undivided tenths. It is in this situation that an application was made for an assignment for a homestead. Such an assignment can not be had under the rule in Ohio. Gaylord v. Imhoff, 26 Ohio St. 317 ; Mortley v. Flannigan, 38 Ohio St. 404; Thurston v. Maddox, 6 Allen, 430; Wolf v. Fleischer, 5 Cal. 245; West v. Ward, 26 Wis. 580; Thorn v. Thorn, 14 Ia. 49 ; Butt v. Green, 29 Ohio St. 667.
    4. The defendant presents the partition agreed between herself and her co-tenants. That is not binding upon plaintiff, who is not a party and has not been consulted with reference to it. The partition to be binding upon him must be one to which he is a party, either by voluntary assent thereto or by judgment of court against him. 1 Jones on Mortgages, sec. 706; Colton v. Smith, 11 Pick. 311; Monroe v. Luke, 19 Pick. 40; Bradley v. Fuller, 23 Pick. 1. We understand that the proceeding for partition and assignment of homestead cannot be joined in the same proceeding under any practice provided for by statute or known to the usage of our courts. 5 W. L. M. 25; 8 Am.- L. R. 654. The purposes of the two proceedings are wholly distinct. One is a proceeding of creditors for the satisfaction of a debt. The other is a proceeding between the co-tenants for the separation of their interests in property.
    
      Wm. Cornell, for defendants in error.
    Married women are entitled to all the benefits of the exemption laws of the state of Ohio. 81 Ohio Laws, 65, sec. 5319.
    Husband and wife living together may hold exempt from sale, on judgment or order, a family homestead not exceeding $1,000 in value. Rev. Stats., sec. 5435. Also $500 in value, of personal property, in lieu of a homestead. Rev. Stats., sec. 5441.
    A debtor may hold, as a homestead, an undivided interest in land, if occupied by him as such. McConville v. Lee, 31 Ohio St. 449. The cases of Gaylord v. Imhoff, 26 Ohio St. 337, and Mortley v. Flannagan, 38 Ohio St. 404, cited by counsel for plaintiff in error, do not apply, for the reason, that the property in question there was partnership property, and partners are liable for the debts of each other. Tenants in common are not liable for the debts of each other. They can sell and convey an individual interest in lands so held, without let or hindrance from their co-tenants. Such property is in every sense of the word individual property.
    In Comer v. Dodson, 22 Ohio St. 615, it was held that after sale in partition a co-tenant could hold the proceeds of such sale exempt from execution as against a judgment creditor. Why, then, could the debtor not hold the property exempt before sale? If exempt when claimed in lieu of a homestead, why not exempt when occupied and claimed as a homestead ? Because she does not own the whole tract, instead of an undivided interest, does not constitute a valid reason for turning her out of a homestead. Freeman on Executions, sec. 243. American Law Register, new series, vol. 1, p. 654. A tenant in common in the occupancy of any part of the estate so held, is a legal occupant as well as a legal owner. It does not matter in such a case whether a partition is legally made or otherwise.
    The cases of Selders v. Lane, 40 Ohio St. 345; Cooper v. Cooper, 24 Ohio St. 488, and Gibson v. Mundell, 29 Ohio St., cited by counsel for plaintiff in error, do not apply, for the reason that the right to claim a homestead, arose after the lien of the creditor had attached to the property. Not so in the case at bar. In the case at bar, the debtor is Tabitha Myers. The property is hers. She has not disposed of the property. She makes the selection in right of the debtor.
    The courts of Ohio have heretofore given to the exemption laws of the state a liberal construction in favor of those claiming under them. Sears v. Hanks, 14 Ohio St. 298, 301; Freeman on Co-tenancy, 54, 55, 56; Wildermuth v. Koenig, 41 Ohio St. 180.
    A. voluntary partition may be made by agreement of all the parties to the co-tenancy. Freeman on Co-tenancy, secs. 393, 394.
    
      Lien holders are not deprived of their liens by partition, whether made by order of court or by the voluntary acts of the parties owning the joint property. Freeman, secs. 415, 478, 479; Cradlebaugh v, Pritchett, 8 Ohio St. 646-650; Comer v. Dodson, 22 Ohio St. 615, 622.
    Whatever a court will compel parties to do, when applied to, will be upheld if done by the parties without the intervention of a court. Turpin v. Turpin, 16 Ohio St. 270; Storey on Equity Jurisprudence, sec. 1357.
   Dickman, J.

In June, 1883, the district court, on appeal, found that Tabitha Myers made and executed the obligation set out in the petition, and intended and thereby charged her separate estate with the payment of the amount of the obligation ; and that the plaintiff, by virtue thereof, became entitled to have her separate estate subjected and applied to such payment. It was further considered by the court, that the plaintiff recover judgment against Tabitha Myers; and it was ordered and adjudged, that she pay or cause to be paid to the plaintiff!, within a given time, the sum found due him, and in default thereof, that the sheriff proceed to sell her separate estate described in the petition, as upon execution at law; and that an order of sale issue therefor upon precipe.

Subsequently to the rendition of this judgment, but prior to the issue of an order of sale, Mrs. Myers entered into an agreement for a voluntary partition with her co-tenants of the property described in the 'petition, whereby a tract in the north-east corner of the farm was set off and conveyed to her in severalty. And in the month of Majr, 1886 — an order of sale not having then been issued — the defendants had constructed a small frame house on the land so set off, and moved into it, and occupied it as a family homestead. By reason of such improvement and occupancy, as husband and wife, the defendants claim that a homestead in the property should be assigned to Mrs. Myers, neither of them being the owner of any other homestead. It is contended, however, by the plaintiff, that under such a state of facts, the wife is not entitled to a homestead in the premises set off to her in severalty.

Section 5438 of the Revised Statutes provides, that, “ the officer executing any writ of execution founded on a judgment or order shall, on application of the debtor, his wife, agent, or attorney, at any time before sale, if such debtor has a family, and if the lands or tenements about to be levied upon, or any part or parcel thereof, constitute the homestead thereof, cause the inquest of appraisers, upon their oaths, to set off to such debt- or, by metes and bounds, a homestead not exceeding one thousand dollars in value.”

Construing the language of this section, it was held in Wildermuth v. Koenig, 41 Ohio St. 180, that a judgment lien attaching before the realty has been impressed with the characteristics of a homestead, is not such a lien as precludes the allowance of a homestead; and that real estate having the quality or status of a homestead before it is about to be levied upon,” or seized under an order of sale, should be set off for the use of the debtor’s family.

It is contended that before the defendants had taken any steps toward the acquisition of a homestead, the plaintiff had acquired an interest in the estate equal to a levy, by the filing of his petition, and that the decree of the court was entitled to the dignity and force of a levy. By executing the note or obligation, Mrs. Myers did not direct out of what it was to be paid, or by what means it was to be paid; and it would not be correct, according to legal principles, to construe a contract, to pay, into a contract to pay the debt out of a particular property so as to create a lien upon that property. She gave no mortgage, nor executed any other instrument which was equivalent to constituting a specific lien, nor did the contract made by her become a specific lien upon her separate estate. Maxon v. Scott, 55 N. Y. 247; Todd v. Lee, 16 Wis. 480.

If no personal judgment could have been awarded against, her and enforced by execution, it might have been proper to invoke the remedy in equity of specifically subjecting her separate property. But under the statutory provisions herein considered, authorizing a personal judgment against a married women followed by execution where the action concerns her separate estate, an effective remedy is afforded, and a creditor should not, by adopting the form of chancery procedure where he has no specific lien, be permitted to hold her separate estate to any greater extent or by a firmer grasp, than he could, under like conditions, hold the property of her husband or that of an unmarried woman.

By virtue of the amendments of section 28 of the Code of Civil Procedure, which are substantially embodied in sections 4996 and 5319 of the Revised Statutes, a radical change has been effected in the remedy against married women. Though the object of this legislation was not to enlarge or vary the liabilities of a married woman, it fundamentally changed the form of the remedy. Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St. 136. The disabilities of coverture are so far removed, that where the action concerns her separate property, a personal judgment may be rendered against her in all cases where such judgment would be proper were she a feme sole. Such judgment may be enforced in all respects as if she were an unmarried woman. Execution may be issued against her separate property and estate, to the same extent as against the property of her husband, were the judgement rendered against him ; and the same rule will apply to her for the purpose of setting off a homestead in her property about to be levied upon, that applies to her husband. In instituting suit against her, it is enough to aver that she has separate property subject to be charged, without describing any specific piece of property, as it is not necessary by decree to subject any particular piece. Corn Exchange Insurance Co. v. Babcock, 42 N. Y. 613 (appendix).

But in proceeding by way of execution against the wife’s separate property, the law has, in a liberal and humane spirit, guarded all her rights of homestead. It is provided by section 5319, supra, that she shall be entitled to the benefit of all exemptions to heads of families. Before levy of execution or ' seizure under an order of sale, she may impress upon her land the homestead character, so that, upon her application at any time before sale, a homestead shall be set off to ,her by metes and bounds. And not only may she before such levy or seizure dedicate and secure a homestead by visible occupancy, in the land of which she holds the title; but if she has become the owner of the superstructure of a dwelling house occupied by her as a family homestead, although the title to the land is in another, she will be protected in the enjoyment of her homestead as against the judgment creditor.

With the changed remedy against a married woman, allowing a persona! judgment followed by execution, goes pari passu the statutory protection of her homestead. And where no specific lien upon her separate estate has been created, the force and effect of the statute can not be frustrated, by setting out in the petition a description of specific separate property and rendering a decree that such property shall be applied to the payment of the wife’s obligations, where she has asserted by use and occupation a right of homestead before the issue of an order of sale. To such a decree we do not attach the effect of a levy, nor can the wise and benevolent policy of the law be thus defeated. In authorizing a homestead to be set off to the debtor in the lands or tenements about to be levied upon,” the statute contemplates, that he may establish his right to a homestead, by use and occupation of the property before steps have been taken by a levy or seizure under an order of sale to enforce the judgment. It is to the enforcement of the decree or judgment that the prior use and occupation of the property for a homestead must be referred.

It is urged, however, in behalf of the plaintiff, that the homestead cannot be allowed in this case, because the interest in which it is claimed is to be regarded’ as an undivided interest in premises held in common by Mrs. Myers and her husband’s brothers and sisters. In view of the voluntary partition had among the co-tenants, the question is not presented to us in an absolute and unqualified form, whether homestead rights can attach to an undivided interest in lands, in the absence of an express provision of the statute to that effect. In this connection, however, we do not hesitate to adopt the views of Mr. Freeman, who is known as a careful and judicious writer. We see no sufficient reason,” says he, “ even in the absence of statutes directly bearing upon the subject, for holding that a general homestead act does not apply to lands held in co-tenancv. The fact that a homestead claim might savor of such an assumption of an exclusive right as is inconsistent with the rights of the other co-tenant, and that the maintenance of such claim might interfere with proceedings for partition, form no very satisfactory reason for denying the exemption. If the rights of the other co-tenant are threatened or endangered, he alone should be permitted to call for protection and redress. The law will not sanction any use of the homestead in prejudice of his rights. . But as long as his interests are respected, or so nearly respected that he feels no inclination to complain, why should some person having no interest in the co-tenancy be allowed to avail himself of the law of co-tenancy for his own, and not for a co-tenant’s gain ? The homestead laws have an object perfectly well understood, and in the promotion of which courts may well employ the most liberal and humane rules of interpretation.” Co-tenancy and Partition, § 54.

The co-tenants of Mrs. Myers have not been embarrassed or prejudiced by her homestead claim, and find no ground of complaint, as they entered into a mutual agreement for a voluntary partition of the property which they held in common, and set off and deeded to her, her interest in severalty. The partition, it is true, was accomplished without the knowledge of the plaintiff, and if there had been a statutory proceeding in partition, he would have been a proper party defendant as a person interested, and as such entitled to notice. But he has not been denied the right nor debarred the opportunity of inquiring and determining upon proper issues made, as to the justice of the partition. On the contrary, the circuit court decreed, that Mrs. Myers had become and was entitled to a homestead in the premises assigned to her in severalty, subject to the right of the plaintiff to make such inquiry.

Our attention has been called to Gaylord v. Imhoff, 26 Ohio St. 317, and it is virtually assumed in argument, that there is such an analogy between partnership and tenancy in common, that if the homestead exemption does not extend 'to'partners, it can not extend to tenants in common. It was held in that case, that the members of an insolvent firm are not entitled to the statutory exemptions out of the partnership property after it has been seized in execution by partnership creditors, notwithstanding all the members join in demanding the exemptions. But that case did not involve a consideration of the exemption of partnership lands, when claimed as .homesteads. The incidents, moreover, annexed to partnership and tenancy in common are diverse and have a different origin, and it becomes evident upon examination, that even if a co-partner could not successfully claim as a homestead any part of the firm realty, an estate in common might support a right of homestead in one of the co-tenants.

Our conclusion therefore is, that the judgment of the circuit court should be affirmed, and the cause remanded for further proceedings.

Judgment accordingly.

Owen, C. J„, and Spear, J., dissent from first proposition of the syllabus, and from the judgment.  