
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Griffen, JJ.
    THE STATE OF OHIO ex rel. HATTIE ARMSTRONG v. WALTER LACY, Constable.
    
      Holder of chattel mortgage suing for debt as for money icithout regard to his mortgage — Waiver of rights under mortgage— Homestead—
    Wber6 a vendor reduces his claim for balance of purchase money to judgment and takes the goods upon execution, there is’ a waiver by him of ownership by virtue of a chattel mortgage, and the vendee is entitled to homestead exemption out of such property.
    Mandamus.
   Relator bought a lot of furniture from A. J. Conroy & Co. for $464.92, payable in installments of $25 per month, •and as a part of the transaction executed a chattel mortgage to secure the purchase money, duly sworn to as a chattel mortgage,and duly filed as such. The sale was conditioned that the title of the property should remain in Conroy & Co. until all the installments were paid, The relator paid $208. Conroy & Co. sued her for the remaining installments unpaid, and got a judgment before a magistrate for $267.16 and costs, and levied an execution on the property sold. The relator demanded of the constable that he set off to her the property levied on as exempt under the homestead laws, which the constable refused to do. A writ of mandamus was issued to compel him to do so. The relator claimed that upon the levy of execution upon the goods so sold, Conroy & Co. elected to treat the property as the property of the relator, and that the title shifted from the vendor to the vendee, and became absolute in her, and that she was therefore entitled to her exemption in lieu of homestead,

Smith, P. J.; Swing and Giffen, JJ., concur.

We are of the opinion that the relator is entitled to a writ as prayed for requiring Lacy, as constable, to proceed under the statute to set off to her the exemptions to which she is by law entitled. He has in his possession, actual or constructive, and under his control as such constable, property .levied on by him by virtue of an execution issued on a judgment recovered by A. J. Conroy & Co. against the relator, such levy having been made on such goods at the direction of said plaintiff in said judgment. This, we think, was a waiver of any claim by said Conroy & Co. to the ownership of said property .by virtue of a chattel mortgage from Mrs. Armstrong, the relator, even if such claim were asserted in this action, as we understand it is not.

We find from the evidence in this case that Mrs. Armstrong is a resident of this state and city, and was so at the time of the levy of this execution, and ever since has been; that she is not the owner of a homestead, or of any real estate, and that she is a widow and the head of a family, and, therefore, under the statute that in lieu of a homestead she is entitled to hold exempt from execution on this judgment, personal property to be selected by her, not exceeding $500 in value, in addition to the amount of other chattel property she may have which the law exempts. That this was the case when the execution was levied and the demand made upon the officer to set off to her her property as exempt, and that she had not, when said levy and demand were made, personal poperty of the value of $500. That said relator did make a legal and proper demand for such exemption, asking that the whole of said property be set off to her on the ground that the value of it and of all of her property was less than $500, which demand was refused.

L. H. Pummill, for relator.

Thomas L. Michie and J. C. Clore, contra.

The defendant will be required, therefore, to proceed according to law to ascertain the value of relator’s said property, and set off to her so much thereof as is exempt from execution as is selected by her,  