
    Radford et al. v. Kachman.
    (Decided October 15, 1927.).
    
      Mr. C. R. Cline, for plaintiffs in error.
    
      Messrs. Woolley' & Rowland, for defendant in error.
   Mauck, J.

Kacktnan by Ms petition in the common pleas court sougM to enjoin the defendants from selling certain personal property by order of attachment issued by a justice of the peace, on the ground that the attached property was exempt from execution. The plaintiff claimed .that a team of mules, constituting part, of the attached property, was exempt from levy and sale under the provisions of Section 11725, General Code, and that the remainder of the attached property was exempt under Section 11738, General Code. He pleaded that he was a resident of this state, the head of a family, and not the owner of a homestead.

The defendants filed an answer which specifically admitted part of the plaintiff’s petition, and by denying none of the petition inferentially admitted all of the allegations thereof, except as the same were traversed by a recital that at the time of the commencement of the attachment proceedings on July 28, 1924, the plaintiff was the owner in fee simple of a homestead; that he conveyed that homestead about September 1, 1925, to the Athens Lumber Company; that on September 12, 1925, the plaintiff obtained judgment in the attachment proceedings ; that the conveyance was made with intent to defraud the attaching creditor and deprive him of the rights he had at the time of the commencement of the action. The answer concludes:

“That said conveyance was a conveyance of the legal title only, and that said Stephen Kachman is still occupying said homestead under a contract for deed from said the Athens Lumber Company and still is in equity the owner of said premises.”

To this answer the plaintiff replied, denying the averments of the answer. Trial was had, resulting in a decree for the plaintiff, as prayed for, and to this decree error was prosecuted to this court. So far as the decree below affects the team of mules, it is now agreed that the decree was right and that the mules were exempt from levy under the section referred to.

Whether the plaintiff was entitled to., exempt the remaining property turns upon the question whether plaintiff was the owner of .a homestead at the time his right to an exemption accrued. He pleads that he was not the owner of such homestead, and, while this plea was not in terms denied, it was by answer charged that certain property deeded by the plaintiff to the Athens Lumber Company was in fact the homestead of the plaintiff by virtue of his equitable title thereto. While this -is an awkward way of pleading, we take it that its effect is to admit that if the plaintiff was not in fact occupying the lands deeded by him to the Athens Lumber Company he had in fact.no homestead precluding him from asserting the exemption which he was claiming. While this issue of fact as to the occupation of the property, seems to arise upon the assertion in the answer that the plaintiff did occupy the property, the burden of proof remained just as it would have been had the defendant denied that the plaintiff was not the owner of the homestead.

From the record we gather that on July 28, 1925, suit was filed against the plaintiff by the defendant Radford, and the personal property involved was attached; that at that time the plaintiff and his wife were owners of the tract of land mentioned, which they subsequently conveyed to the Athens Lumber Company; and that contemporaneously therewith the Athens Lumber Company gave- back to the plaintiff a contract by which the plaintiff could reacquire the legal title to the land. It further appeárs that this conveyance was in effect a mortgage only; that the lumber company did not in fact purchase the property, ,but took legal title thereto for the purpose of securing its pay for erecting thereon a dwelling house to replace one that had been destroyed by fire. On July 28,1925, when the suit before the justice of the peace was begun and the personal property was seized by attachment, the plaintiff had both legal and equitable title to the land now claimed to have been his homestead. On September 12, 1925, when the judgment and the order of sale were obtained against the plaintiff, he owned the equitable but not the legal title to that real estate. The first question that arises, therefore, is whether the right to have exemption depends upon the status of the claimant at the time the order of sale was issued on September 12 or at the time the property was attached on July 28.

This question, so far as an execution levy was concerned, was considered in Johnson Electric Supply Co. v. Spence, 28 O. C. A., 44, where it was held that the right to claim the property in lieu of a homestead was fixed as of the date of the levy. That case can be said, therefore, to have determined that as against execution the rights of parties are fixed at the time the execution is levied. To like effect is Nixon v. Vandyke, 2 C. C., 63, 1 C. D., 364. It is argued, however, that, while the rights of,the parties as against an execution are to be determined at the time the property is seized, a different* rule prevails as against' an order of attachment; that in the latter case the attachment is not in fact levied until money has been raised by the attachment. And to support this view resort is had to the original, primary signification of the word “levy,” which is to raise money. Nelson v. Van Gazelle Valve Mfg. Co., 45 N. J. Eq., 594, 17 A., 943. This is a refinement of the word ‘ ‘ levy ’ ’ which we cannot follow. An- execution is levied and an order of attachment is levied on personal property when that property has been taken by the officer charged with the enforcement of the writ. The argument that a writ of attachment should be deemed levied at some other time than the seizure, because the debtor might not be present to demand his exemption from levy, is without merit. He is just as apt to be present at the seizure of his chattels on attachment as when those chattels are taken on execution.

“The word ‘levy’ is applied to attachment writs as well as to executions. * * * A levy is defined by Bouvier to be a ‘seizure,’ and it is no less a seizure when made under an attachment than when made under an execution.” Union Nat. Bank of Chicago v. Byram, 131 Ill., 92, 22 N. E., 842.

This precise question was determined in principle by Selders v. Lane, 40 Ohio St., 345. In that case the judgment debtor, demanded his exemption after the sale of the attached property, on the ground that, he was then a married man. He was not such married man at the time the levy was made. His marriage occurred on some day after the property was seized and before the sale. The court held him not to be entitled to exemption, because his rights were fixed at the time of the levy and not at the time of the sale, thus distinguishing the seizure from the sale by designating the seizure as the levy. The levy in this case was therefore made at the time the property in question was reduced to the possession of the constable under tbe writ of attachment, and at that time the rights of the parties were fixed.

In this view of the case it is probably not important that we determine the effect of the deed made by the plaintiff to the lumber company. While the record is somewhat meager, we do not have any difficulty in finding that in any view of the case the deed was of no consequence. It seems from the testimony of the representative of the lumber company that that company had no substantial interest in the property when it accepted the deed, and that the only purpose of the conveyance was to secure the lumber company on a small past-due obligation and for material to be thereafter supplied. Manifestly Kachman was the owner of the equitable title to the property. The well-nigh universal holding is that an equitable title is sufficient to support a homestead.

“The homestead law protects a possession held under an equitable as well as one under a legal title. Under this rule a homestead may be claimed in land of which the party is in possession under a contract of purchase or any other equitable title as well as if he held the legal title. ” 13 Ruling Case Law, 569, and authorities cited.

It is true that Robinett v. Doyle, 2 W. L. M., 585, 2 Dec. Rep., 391, is an authority to the contrary, but that case was decided at a time when exemptions were only allowed against sales on execution, and as an equitable interest could not be sold "on execution it was held that an equitable estate was insufficient to constitute a homestead. Exemptions are no longer confined to rights as against execution, but can be asserted against an order of attachment, an order of sale in equity, or any other writ' by which the debtor can be deprived of title and possession. Section 11730, General Code. The Bobinett case is no longer an authority. Colwell v. Carper, 15 Ohio St., 279, does not militate against this rule, as in that case there was no equitable ownership on the part of the claimant, nor anything but possession as a tenant, and such possession was held, of course, not to constitute a homestead. And so with MoConville v. Lee, 31 Ohio St., 447. In that case the judgment debtor had conveyed his homestead and at best only had a right of repurchase; He had nothing of value in the property and did not. have an estate either of a legal or equitable character.

The judgment is reversed and a new trial ordered, with the direction that the right of the plaintiff to an exemption be determined as of the date when the property in question was seized by the constable under the order of attachment.

Judgment reversed.

Middleton, J., concurs.

Sayre, P. J., not participating.  