
    Stoner v. Anderson, Receiver, et al.
    
      (Decided October 10, 1934.)
    
      Mr. H. J. Shoemaker, for plaintiff in error.
    
      Messrs. Amerman & Mills, for defendants in error.
   Lemert, J.

John R. Anderson is the duly appointed, qualified and acting receiver of The Sell Company, which company formerly operated a retail furniture store in Canton, Ohio. Anola Stoner is the duly appointed, qualified and acting executrix of the estate of I. 0. Stoner, deceased, having been so appointed by the Probate Court of Stark county.

On or about the 22nd day of August, 1929, The Sell Company sold a consignment of furniture to I. 0. Stoner and charged on its books the unpaid balance to I. 0. Stoner. The consignment of furniture was then delivered by The Sell Company to the residence of I. 0. Stoner. Certain payments were then made on the account by I. 0. Stoner, so that when he died there remained unpaid on such account the sum of $250. No chattel mortgage or other instrument of any kind to obtain a lien for the vendor’s unpaid account was ever obtained or filed. On February 12, 1931, I. 0. Stoner died testate. His will, in substance, provided, first, for the payment of his debts, and second, devised and bequeathed the balance to his wife, Anola Stoner.

The will was duly probated, and on February 26, 1931, the appraisers of the decedent’s estate duly qualified to make such appraisement and, pursuant to the statutes in such cases provided, set off to the widow, Anola Stoner, certain household goods, including the furniture in question. The assets of decedent’s estate were insufficient to pay his debts in full. Sometime in May, 1933, the receiver of The Sell Company obtained a judgment in the Common Pleas Court of Stark county, on the account for $250 and costs, against Anola Stoner as executrix of the estate of I. 0. Stoner, deceased. Thereupon, the receiver caused an execution to be issued out of such court, directed to George A. Daily, sheriff of Stark county, for the satisfaction of the judgment, directing him to seize the furniture, then in the possession of the widow. Anola Stoner, the widow, then filed her petition in the Common Pleas Court, seeking a permanent restraining order enjoining such seizure and levy. A temporary order was allowed pending final determination of the issues. On final hearing, the Common Pleas Court dismissed plaintiff’s petition for a permanent injunction.

Section 10509-54, General Code, provides what property is exempt from administration. Section 10509-55, General Code, provides as to the disposition of exempted personal chattels, and Sections 10509-121 and 10509-122, General Code, provide the order of priority in which debts are to be paid and the manner of payments. In regard to these two sections, Section 10509-123 provides:

“Nothing in the next two preceding sections shall affect any lien, legal or equitable, which a creditor or other person had upon the personal estate of the deceased during his lifetime.”

It is important to observe that Section 10509-54 makes it mandatory that upon the widow’s selection such household goods shall not be deemed assets or administered as such. The sections just referred to, 10509-121 and 10509-122, listing the class of debts to be paid, do not include such statutory allowance to the widow. The reason is very apparent, for it is not a debt, but is a statutory provision to be fulfilled before even debts of any kind are considered. As herein-before stated, there was no lien upon this personal property, to-wit, the fnrnitnre in question.

Section 8436, General Code, provides in part:

“The unpaid seller of goods loses his lien thereon— “(a) When he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving the property in the goods or the right to the possession thereof.

“(b) When the buyer or his agent lawfully obtains possession of the goods.”

In the case at bar, the purchaser, I. 0. Stoner, had exclusive and uninterrupted possession and use of these goods for some time before his death, so that the principal questions in this case to be determined are: First: Whose property was the furniture in question at the time of the decease of I. 0. Stoner? Second: Does the defendant in error herein have any lien, either legal or equitable, in the household goods? Third: Has the defendant in error been guilty of laches and thereby allowed the interest of an innocent third party to be jeopardized?

In answer to the first question, we have the facts in the record that I. 0. Stoner was the owner of the furniture at the time of his decease, and by virtue of the appraisers having set off the same to the widow, the property and furniture thereby passed to the widow, subject to whatever lien the defendant in error had therein, if any. At the time of attempted levy of the execution, the property and possession of the furniture belonged to Anola Stoner, and her property could not be subjected to the satisfaction of the debts of the estate of I. 0. Stoner by a mere levy, for thereby the judgment creditor would be subjecting the property of a third party to the payment of such judgment creditor’s debts.

Going to the proposition of the second question, the matter of the lien, if any, which the defendant in error had in the furniture, we cannot find that the statutes or law invoke any lien in favor of an unpaid seller, except the lien of a vendor. We are not unmindful of the fact that the statutes make a provision that no chattel property shall be exempt from execution in favor of a judgment creditor for any of the unpaid purchase price. But this denial of exemption applies only between the vendor and the vendee and certainly does not carry over to an innocent third party, especially when such third party has legally come into possession thereof, as did the widow in this case.

Coming now to consider the third question, whether or not the defendant in error has been guilty of laches, we are of the opinion that it was his duty to have raised this issue at the time the inventory was filed in Probate Court. Not having done so, the widow, of course, was placed in a position where she assumed that the household goods were hers by right of such set-off by the appraisers. Had she then been informed of the claimed right of the defendant in error in such chattel property, she could have elected to take money in lieu thereof. She is now perhaps deprived of such choice and if the defendant in error is now permitted to seize the household goods, then she becomes deprived of property that the law intends to be exempt and to belong to her.

We are, therefore, of the opinion that the finding and judgment of the court below is erroneous and the same is hereby reversed and final judgment rendered for plaintiff in error.

Judgment reversed.

Sherick, P. J., and Montgomery, J., concur.  