
    A. K. Tracy et al. v. Mary Cover.
    Where a debtor, being the head of a family, and having no homestead, and1 being possessed only of personal property, not exceeding in value the amount which the law allows to be held exempt from execution, in lieu of a homestead, makes a colorable or pretended sale of such property, for the purpose of placing the same beyond the reach of creditors, the-judgment creditors of such debtor do not thereby acquire a right to levy on and sell such property, in disregard of the claim of the debtor,, properly made, to hold the same exempt from execution.
    Error to the District Court of Putnam county.
    The original action in this case was brought by the defendant in error, Mary Cover, against the plaintiff in error,. A. K. Tracy, and the sureties on his official bond, as constable of Ottawa township, in Putnam county, Ohio. The petition of the plaintiff in the court below alleged that she was a resident of the State of Ohio, the head of a family, and not the owner of a homestead; that the defendant, as-constable of said township, in July, 1870, by virtue of a writ of attachment issued in an action then pending against her, before a justice of the peace of the township, at the-suit of one of her creditors, levied on and attached certain goods and chattels then owned by her, and which were.particularly described in a schedule attached to her petition; that upon the rendition of judgment by said justice against her, in said action, an order of sale was issued to said constable, Tracy; and that she thereupon notified said ■defendant, Tracy, in writing, that she was a resident of the •State of Ohio, the head of a family, and not the owner of .a homestead, and that she selected and claimed to hold the property so levied on and held by him, in lieu of a homestead, and demanded of him that the same should be appraised and set off' to her, to be held exempt from sale on ■execution, in lieu of a homestead. But that the defendant, Tracy, disregarding said notice, and in violation of his ■duty as such constable, refused to have said goods appraised ¡and set off to her, and illegally proceeded to, and did, advertise and sell said goods; for which she asked judgment in the sum of $500.
    The defendants answered, denying, among other things, that, at the time the said goods were levied on, the plaintiff was possessed thereof, and alleging that prior thereto, to wit, in June, 1870, the plaintiff had made a pretended sale of said property to her sons, who had taken possession of the same, and were in possession thereof at the time of the levy.
    Upon the trial, the cause was submitted to the court upon testimony offered by the parties, and the following .agreed statement of facts :
    1. That the plaintiff is a resident of Ohio, and not the -owner of a homestead, as is averred in the petition.
    2. That the goods described in the petition were attached and sold as the property of the plaintiff, by A. K. Tracy, constable, by virtue of writs in his hands, as set forth in the petition.
    8. That prior to the sale of the property, and before it was advertised for sale, and before the order of sale was ■ issued, and after judgment, the said plaintiff notified the said A. 3L Tracy, in writing, that she was the head of a family, a resident of Ohio, and not the owner of a homestead, and demanded of the said constable an exemption in lieu of a homestead, and that she selected the said property so levied upon as her exemption by virtue of the statute, which said demand and selection the said constable disregarded, but proceeded and sold said property, as is set forth in the petition ; and at the time of the demand of the exemption the constable had the property in his possession.
    4. That the goods and property so sold were of the value of $483.50.
    5. That prior to the attachment of said goods and chattels, as set up in the petition, and on, to wit, June 16, 1870, the said plaintiff had made a pretended sale of said goods and propérty to her two sons Joseph and John E. Cover, and that John E. Cover had taken possession of the same, and had possession at the time the goods were attached.
    6. That from the time the said pretended sale was made, June 16,1870, until said goods were attached, said John E. Cover had possession thereof, by virtue of said sale, and was doing business for himself and brother, Joseph Cover, and during said time was living with his mother. That after said time, until September, 1870, he lived with his mother, as before, and then went into business again for himself, and has ever since resided with his mother, and done business for himself.
    7. That the plaintiff' was not present at the time of the levy of the attachment; that immediately after the inventory was made, which was the day of levy, and the day following she made demand that her sewing-machine be set off, which was done, and at said time made no other or further demand.
    8. The execution of the official bond admitted, and also that the plaintiff had no other property subject to execution, save that described in the petition.
    Other evidence was offered, tending to prove, and the plaintiff herself so testified, that she made the sale of the property described in the petition, to her sons, for the purpose of keeping it from being applied to the payment of ier debts; that her sons knew of her indebtedness, and made the purchase to save the property from her creditors; also showing that she was the head of a family, and that, short]} before the goods were attached, fhe plaintiff, in conversation with a creditor, disclaimed her ownership of them, and said that she had sold them to her sons.
    The court found the issues in favor of the plaintiff, and rendered judgment against the plaintiffs in error for the agreed value of the goods.
    Upon the hearing of their petition in error, this judgment was affirmed by the district court.
    Plaintiffs here ask a reversal of these judgments, on the ground of error in the courts below in finding that the defendant in error was the owner of the property attached, and entitled to hold the same in lieu of a homestead.
    
      Swan ‡ Moore, for plaintiffs in error :
    The defendant in error is not entitled to the homestead, A party defrauding is bound by his or her agreement, and can not take advantage of his or her fraud. Story on Sales, sec. 159; Brown v. Webb, 20 Ohio, 389; S. & C. R. S. 656; Burgett v. Burgett, 1 Ohio, 469; Douglas v. Dunlap, 10 Ohio, 163; Tremper v. Barton, 18 Ohio, 418; Barton v. Morris, 15 Ohio, 408; Jackson v. Eaton, 20 Johns. 478; Bolt v. Rogers, 3 Paige, 154; Gale v. Gale, 19 Barb. 249; Chamberlain v. Barnes, 26 Barb. 160; Proseus v. McIntire, 5 Barb. 424; Crooker v. Crooker, 17 How. Pr. 504; Wetz v. Beard, 12 Ohio St. 431; Brackett v. Watkins, 21 Wend. 68; Herschfeldt v. George, 6 Mich. 456.
    
      Isaiah Pillars, for defendant in error,
    cited and relied on Sears v. Hanks, 14 Ohio St. 298.
   Scott, Chief Judge.

The question in this case is : Where a debtor, being the head of a family, and having no homestead, and possessed only of personal property, not exceeding in value the amount which the law allows to be held «xempt from execution, in lieu of- a homestead, makes a. colorable or pretended sale of such property, for the purpose of placing the same beyond the reach of creditors, do the judgment creditors of such debtor thereby acquire a right to levy upon and sell such property, in disregard of the claim of the debtor, properly made, to hold the same exempt from execution ?

In the case of Sears v. Hanks, 14 Ohio St. 298, it was held that judgment creditors, at whose suit a conveyance made'by their debtor has been set aside as a fraud upon their rights, can not, upon execution issued under the decree in the case, set up the fraudulent conveyance, against which they claim, as a bar to the debtor’s assertion of his right to have a family homestead exempted from sale on such execution. The principle of that decision, and the reasons upon which it rests, are fully applicable to the present case, and require the question which we have stated to be answered in the negative.

The plaintiff' in error, acting on behalf of a creditor, elected to treat the pretended sale as a nullity ; and this he might properly do. He levied upon the property, and sold it as the property of the defendant in error, and is estoppedj whilst doing so, to claim that, in virtue of the pretended sale, the property was no longer hers. He can not, at the same time, claim under and against the pretended sale. The sham sale in no wise affected the rights of creditors, and they must be asserted in conformity with the limitations which the humanity of the statute imposes upon their exercise. The plaintiffs here in no way connect themselves with the title of the defendant’s vendees, and therefore can not set it up in bar of her rights. Kitzmiller v. Van Rensselaer, 10 Ohio St. 63.

The defendant is not here claiming any rights under the pretended sale; she merely unites with the plaintiff in wholly ignoring it; and therefore the maxim that no one is allowed to derive a benefit from his own wrong act is inapplicable to the case.

Ve might add that, since the policy of the law gave this. defendant’s creditors no right to subject any of this property, against her will, to the satisfaction of their judgments against her, it is not easy to see how her sale of it, whether real or pretended, could operate .as a fraud upon their rights. The fraud in the case can have existed in intention ouly, and that intention must have originated from ignorance of her rights.

The question as to the validity of the pretended sale, as-between vendor and vendees, it will be time enough tb-consider when the vendees, or some one in privity with them, shall claim rights under it.

Judgment of the district court affirmed.  