
    Ridenour et al. v. Scott.
    (Decided April 22, 1931.)
    
      Messrs. F. 8. & J. M. Ham, for plaintiffs in error.
    
      Mr. Curtis G. Koester, for defendant in error.
   Lloyd, J.

Frank Ridenour and Elsie Ridenour are husband and wife, and are now and for some ten years have been residing and continuously living together in Ohio. To secure an individual indebtedness evidenced by a promissory note payable to the defendant in error Aurilla Scott, Frank Ridenour, the husband, executed and delivered to Scott his chattel mortgage upon certain chattel property, not including therein any personal household property owned by himself and wife or either of them. The mortgage was duly filed and deposited with the recorder of Pulton county in accordance with law. Neither it nor the promissory note was signed by Mrs, Ridenour.

Aurilla Scott commenced an action in the court of common pleas on the note, and to foreclose the mortgage, and upon trial thereof the court entered judgment on the note and ordered that the mortgage be foreclosed, and that the mortgaged property be sold as upon execution free and clear of any claims of either Mr. or Mrs. Ridenour. Neither Mr. nor Mrs. Ridenour owned or at any time had owned a homestead, and Mrs. Ridenour, claiming that the mortgaged property was of less value than $500, and therefore exempt from execution, demanded same in lieu of a homestead. The trial court found that the property was of less value than $500, but denied the claim of Mrs. Ridenour.

The question here in controversy is whether a wife who has not executed a chattel mortgage duly executed by her husband, and which otherwise is a valid and subsisting lien upon the property mortgaged, is entitled to have or select therefrom, in lieu of a homestead, any property as exempt from execution; neither she nor her husband being the owner of a homestead.

It is stated in 25 Corpus Juris, Section 187, page 108, that: “The consent of the wife or husband, as the case may be, of the debtor is not in the absence of an express statutory or constitutional requirement essential to the transfer or encumbrance of exempt personal property.”

Similarly, it is said in 11 Ruling Case Law, Section 61, at page 544, that: “In the'-absence of a prohibitory statute a mortgage or pledge of exempt property is valid, and the execution of such an instrument constitutes a waiver of the exemption as to the debt secured.”

There is no statute in Ohio of which we are aware, or to which our attention has been called, that requires the consent of the wife to validate a mortgage of chattel property by the husband, and owned by him, except Section 8565-1, General Code, which relates solely to “personal household property.”

It has been argued that the Supreme Court has at least impliedly held, in Dean v. McMullen, 109 Ohio St., 309, 142 N. E., 683, that Mrs. Ridenour, not having signed the mortgage in question, is entitled to claim as exempt in lieu of a homestead the chattel property covered thereby. The controversy in the McMullen case related to a provision in a lease to the effect that lessor should have a lien “for the rent or damages under this lease, whether exempt from execution or not” upon “all goods and chattels, or any property used or kept on said premises.” The Supreme Court expressly distinguishes the facts there involved from the situation presented in the instant case. At page 316 of the opinion the court says: “But the agreement does not constitute a chattel mortgage. If it did, Frost, Jr., v. Shaw, 3 Ohio St., 270, would apply. It contains no conveyance to the mortgagee to secure the performance or nonperformance of an act defeasible upon the performance of the conditions of the lease; it is not executed, nor recorded, as required to constitute a valid chattel mortgage. At the very most, subdivision 9 of the lease constitutes an instrument in the nature of mortgage rather than a mortgage itself.”

We conclude that the judgment of the court of common pleas is correct, and the same is therefore affirmed.

Judgment affirmed.

Richards and Williams, JJ., concur.  