
    JUDGMENT LIENS — MORTGAGES—HOMESTEAD.
    [Tuscarawas Circuit Court,
    May Term, 1898.]
    Adams, Douglass and Smyser, JJ.
    John Kilgore v. Hiram J. Miller et al.
    1. Judgment Creditor, Prior Mortgagee and Homestead Rights.
    A judgment creditor acquiring a lien on different parcels of land, one of which is occupied as a homestead, and'all of which are covered by a prior mortgage, cannot complain of a release of the mortgage from the homestead lot, although such release was made by a relative, who had purchased the mortgage ; parties have the right to the aid of friends or relatives in securing a homestead so long as no illegal act is done; the matter stands as if the original mortgagee held the mortgage and as if the homestead lot had not been released.
    2. Equity Rule as to Marshaling Securities and Liens.
    The rule that where one party has security on two funds and a later lienholder has security on only one of the two funds, the first lienholder will be compelled to first exhaust his exclusive fund before resorting to the other, is not applicable to facts above stated.
    8. Law of Ohio does not Allow Judgment, to Bring Homestead to Sale.
    The law of Ohio does not allow a judgment, in and of itself, to bring a homestead to sale; and the release of the homestead from the mortgage does not so inure to the benefit of the judgment lienholder.
    Appeal from the Court of Common Pleas of Tuscarawas county.
   Adams, J.

The case of John Kilgore against Hiram J. Miller and others, pending in this court upon appeal, has been submitted to the court upon the pleadings and a transcript of the testimony taken at the trial-in the court of common pleas.

The petition in the case was filed February 4, 1897, and is in the nature of a creditor’s bill, wherein John Kilgore states that at the January term, 1896, of the court of common pleas, he recovered a judgment for $674.32, and $9.32, his costs, against Hiram J. Miller and Benjamin F. Stocker; that that judgment has been a lien upon lots five, six and seven owned by Benjamin F. Stocker, ever since January 13, 1896. A party by the name of John Denzer, who, he says, held a mortgage on all three of these lots, was made a party defendant, as were also Benjamin F. Stocker, FI vira Stocker, Hirman J. Miller and a man by the name of Law. Harriet E. Miller was not made a party defendant, and the record shows that the summonses were served upon all these defendants, including John Denzer, on February 11, 1897. Harriet'F. Miller, on her own motion, became a party defendant and filed her answer and cross-petition in the case on March 6, 1897, and in her amended answer and cross-petition, filed March 23, 1897, she sets up that she is the owner of a promissory note, dated September 30,1892, which note was secured by a mortgage executed by Benjamin F. Stocker and Elvira his wife, on lots five and six, and that she is the owner of the mortgage. And she claims and asks to have her note and mortgage paid out of the proceeds of the sale of this property, or at least out of lots five and six. I will come to lot seven later.

Elvira Stocker has filed her answer and cross-petition, by which she sets up the facts that she and Benjamin F. Stocker are husband and wife and are living on lot seven as a homestead, and asks that that be set off to her as a homestead.

Except as to one matter, there is no real controversy. The controversy is raised as to the inference to-be drawn from certain facts. It seems that Harriet Miller borrowed $525.00, and bought this note and mortgage of John Denzer February 13, 1897, andón February 18, 1897, she released lot seven Irom the operation of her mortgage. Lot seven, on the application of Elvira Stocker, was set off to her in these proceedings as a homestead. Lots five and six were sold by the sheriff for $665.-00, and this is a controversy over the distribution of that fund of $665.00 growing out of lots five and six, and as bearing upon that controversy, it is admitted that lot number seven is worth the sum of one thousand dollars. It is on that state of facts that the legal1 question arises.

I might say before I go to the law question that it is claimed by Kilgore that Harriet Miller, the purchaser of this mortgage, being a sister-in-law of Benjamin F. Stocker, bought this mortgage and released lot seven as a part of a conspiracy between the Millers and Stockers to defeat the collection of Kilgore’s judgment, and was, therefore, a fraud on Kilgore. There is no controversy about the facts. She bought the mortgage, she released the lot, and we think from those facts there is no necessary inference"óf fraud to be drawn. She did those acts, and she is responsible for the consequences, legally, of those acts and we think there is no fraud in the matter. These parties had a legal right to preserve their homestead if they could do so legally, and they had the right to have the aid financially or otherwise of their friends or relatives in securing that homestead as long as they did no illegal act; and as it seems to us, this legal question stands exactly as if John Denzer still owned the mortgage, and it stands exactly the same as if lot seven had not been released from the operation of that mortgage. We have here three lots and a mortgage on all three of them, and that mortgage has been a lien on those lots since October 4, 1892. We have a judgment that is a lien upon all three of the lots, and has been a lien only since January 13, 1896; and we have a homestead in lot seven which can not now, as long as that homestead exists, be brought to sale by that judgment lien. We have a mortgage, which would preclude the allowance of a homestead, released as to the homestead.

H. H. Porter, for plaintiff.

J. H Mitchell and Samuel Robinson, for defendant.

It is claimed in argument here that that calls for the operation of an equity rule that where one party has security on two funds, and a later lien holder has security on only one of the two funds, that the first lienholder will be compelled to exhaust his exclusive fund as far as it is applicable to his claim so the second party may have full equity left in his fund.

It is claimed here under that rule, that this lienholder can compel this mortgagee to sell lot seven to wipe out the homestead, or to lose the value of the homestead lot, having released it from the mortgage.

The law of Ohio does not allow a judgment in and of itself to bring a homestead to sale. This judgment lienholder can in no way deprive Elvira Stocker of her homestead, standing on his own rights. If he deprives her of her homestead, it must be under and through the rights of the mortgagee. " Now, did the right of that mortgagee in any way inure to the benefit of that lienholder? We think that the question decided by the Supreme Court of Ohio in Mandel v. McClave, 46 Ohio St., 407, is so strictly analagous to the case at bar that the reason of it must decide the case at bar.

“The contingent right of a wife, during her husband’s life, to be endowed of his real estate at his death, is property having a substantial value that may be ascertained with reasonable certainty from established tables of mortality, aided by evidence respecting the state of health and constitutional vigor of the husband and wife respectively.
‘ ‘Where the wife has joined in a mortgage of the husband’s lands to secure his debt, upon a judicial sale of the premises she may have the value of her contingent right of dower in the entire proceeds ascertained, and the husband’s entire interest therein shall be exhausted to pay the debt before resorting to the interest of the wife therein.
“The release, in such mortgage, of her contingent right of dower does not inure to the benefit of the husband’s subsequent judgment creditors.”

In the case at bar the release from the Denzer-Harriet Miller mortgage of the homestead'right does not inure to t.he benefit of the husband’s subsequent judgment creditors; the same question was decided in Bernsee v. Hamilton, 3 Circ. Dec., 550, the opinion by Judge Upson. I read only the syllabus:

“The holder of a judgment against lands encumbered by a mortgage given by the owners to his wife, cannot against the mortgagee’s consent, require a sale for payment of the mortgage and judgment and thus preclude homestead. ’ ’

This release of this mortgage on lot seven did not defeat the right of Kilgore; Kilgore still has his judgment lien on lot seven; he is in exactly the same position he was before, and by keeping his judgment alive at the termination of that homestead right he is in .a position to assert in that property all the rights that the law gives him. It is his misfortune that the law gives Elvira Stocker a homestead right as against his judgment. There must be the same decree as in the court of common pleas.  