
    Biddinger et al. v. Pratt.
    Replevin— When action may be maintained on bond, in—Homestead— Who is an owner of.
    
    1. An action may be maintained upon an undertaking in replevin in which it is stipulated that the plaintiff will duly prosecute the action, notwithstanding the original action was dismissed, , on motion of the defendant, on the ground that the justice of the peace had no jurisdiction.
    
      2. An. owner of a life estate in lands occupied by him as a family residence, who has conveyed his interest to a creditor with an agreement for a reconveyance upon the payment of the debt, is the owner of a homestead within the meaning of section 5435, Revised Statutes, and is, therefore, no-t entitled to claim the exemption of personal property provided for by section 5441.
    (Decided December 22, 1893.)
    Error, to the Circuit Court of Hamilton countj^.
    On August 20, 1888, a judgment was rendered in favor of one Metier, for $224, against T. J. Biddinger. An execution issued to Jeremiah Pratt, constable, who levied upon certain goods. Biddinger brought replevin against Pratt before a justice of the peace of Cincinnati township, claiming that he was not the owner of a homestead, and was entitled to the goods in lieu thereof. The constable took possession of the property and delivered it to Biddinger, who executed a replevin undertaking, with sureties. Pratt filed a motion to dismiss the replevin suit, for the reason that the justice had not jurisdiction, as both parties and subject-matter were within the jurisdiction of Harrison township, which motion was sustained, and the cause dismissed. No other judgment was rendered by the justice, nor was any execution issued. The goods remained in the possession of Biddinger.
    Suit was thereupon instituted before a justice by Pratt against Biddinger, and his sureties on the undertaking, which was appealed to the common pleas, where the case was submitted on an agreed statement of facts. The court charged the jury that, on the agreed facts, Biddinger was the owner of a homestead, and not entitled to the propert3'levied upon in lieu thereof,, to which defendant excepted. Verdict followed for Pratt, and judgment upon it, which was affirmed by the circuit court.
    
      David Davis, for plaintiffs in error.
    
      T. C. Gaymond' and Geo. B. Goodhart, for defendant . in error.
   By thr Court.

One of the stipulations of the undertaking was that the plaintiff “would duly prosecute the action,” and this means prosecute it to effect. This he failed to do. True, the action was dismissed for want ot jurisdiction in the justice to try it, and on the motion of the defendant, But the plaintiff cannot be heard to complain of that because he elected to bring his action in that, court, and used its process to obtain possession of the property in dispute, which he still retained; neither can his-sureties, because, by signing the undertaking they agreed to make good the default of the principal, and whatever liability attaches to him by reason of the obligation, must equally bind them. The defendant is not at fault. He was given the choice either to challenge the jurisdiction, or, by silence, consent to have his rights adjudicated by a court which was'without jurisdiction. He should not be prejudiced by this effort to vindicate his rights.

The agreed statement of facts shows that the plaintiff had been the legal owner of a life estate in 142 acres of land, on which, with his family, he resided. He had no other real estate. Prior to the beginning of the suit in replevin, he had made a deed of this parcel of land to a creditor as security for a debt, with an agreement that when the debt should be paid the grantee would deed it back. In other words, Biddinger’s deed was but an equitable mortgage. Under the principle laid down in Bartram v. McCracken, 41 Ohio St., 377, he was the owner of a homestead, and therefore not entitled to hold exempt from execution personal property in lieu of a homestead.' There is no error in the charge.

Judgment affirmed.  