
    Close v. Sinclair.
    1. The right given by section 3 of the Homestead Act, as amended February 37, 1873 (70 Ohio L. 51), to a debtor, who is the head of a family, and not the owner of a homestead, to hold exempt from levy and sale, property as therein mentioned, to be selected by him “ at any time before sale,” applies as well to property levied on by attachment as by execution; and an order for the sale of the attached property, made in the proceeding in attachment, does not prevent the debtor from exercising his right of selection after the making of such order of sale.
    3, Where property has been levied on by attachment, and, pending the suit, the debtor assigns all his property for the benefit of creditors, excepting only such as he may lawfully hold exempt from execution, the right of the debtor to select the attached property as exempt from sale is not thereby waived.
    Error to the District Court of Huron county.
    The only important question arising in this cause is under the third section of the act of March 23,1850, as amended February 27, 1873, as to the right of a person, “ the head of a family and not the owner of a homestead,” to hold personal property to an amount not exceeding five hundred dollars, free from levy and sale.
    The defendant, Sinclair, was the head of a family, resident in Ohio, and' not the owner of a homestead.
    Two actions were commenced in Huron county common pleas against Sinclair, under which his property was seized in attachment, viz: the first by Eichelburger, November 12,1873, in which an attachment was levied on 320 bushels of wheat; and the second suit, begun February 10, 1874, by J. IT. Close, in which an attachment was levied on a Marvin safe.
    On February 17, 1874, Sinclair made an assignment to A. B. Smith, of all his property, reserving his exemption rights in the words: “excepting from this assignment, only such property as 1 ma/y lawfully hold exempt from execution.”
    At the June term, 1874, of Huron common pleas, judgment was taken for the plaintiff in each of said cases, against Sinclair, with an order of sale of said attached property.
    • On August 4, 1874, Sinclair served notice upon the sheriff of Huron county, that he (S.) was the head of a family, resident of Ohio, and not the owner of a homestead; and claiming to be entitled, under the exemption laws, to hold exempt from levy and sale such property as he might select, to the amount of five hundred dollars, and demanded that the same' be set off to him as provided by law; and on Angust 8, 1874, the sheriff did, pursuant to the statute, and under Sinclair’s selection, set off to him said “ safe,” appraised at $300, and said wheat, appraised at $200.
    But, notwithstanding said appraisal and setting off of said property, the sheriff refused to, and did not deliver it to Sinclair, but retained the same in his own possession, and on August 10, 1874, was proceeding to sell said property under said orders of sale. Thereupon, at said last date, and before the property was offered for sale, Sinclair, by a proceeding instituted before a justice of the peace, replevied said wheat and “ safe ” from the sheriff. The value of the property replevied, as shown by the appraisal, exceeding the jurisdiction of a justice of the peace, the cause was certified to Huron county common pleas. Eichelburger and Close, on their own motion, were made parties defendant in said action of replevin; and on trial of the cause, the court rendered judgment for Sinclair.
    The district court, on error, affirmed the judgment; and it. is now sought in this court to reverse both judgments.
    
      John M. Lemmon, for plaintiff in error :
    I. When the court sustained these attachments and ordered the property sold, it adjudicated that this property was not ex-' empt. Perkins v. Bragg, 29 Ind. 507; State v. Manley, 15 Ind. 8; see also 76 Pa. St. 232. The proceeding in attachment is essentially in rem, and the order to sell the attached property is an adjudication that it is liable to be applied to pay the claim ; and when the debtor has knowledge of the attachment, his claim for exemption comes too late if not made before this final adjudication.
    II. The demand for exemption should be seasonably made, and that is, at the time the officer is about to execute the order to seize the property. Sears v. Hanks, 14 Ohio St. 298; Fort v. Shaw, 3 Ohio St. 270; Smyth Homestead & Ex., § 536-540. And the right may be lost by laches or waived. Dow v. Cheney, 103 Mass. 181; Clapp v. Thomas, 5 Allen, 158; Smyth Homestead & Ex. § 536; Butt v. Green, 29 Ohio St. 667. This case is in point, the same statute being in force." See Bell v. Davis, 42 Ala. 460; Huswell v. Parsons, 15 Cal. 266.
    TIT. As to exemptions in case of voluntary assignments, see act of January 9, 1861 (73 Ohio L. 3), amending section 15 of the act of April 6, 1857 (1 S. & O. 712).
    
      P. N. Schuyler, for defendant in error:
    The judgment of the court was merely a judicial finding that so much was due the plaintiff, and the order of sale was merely equivalent to, that execution issue, or that execution be proceeded with. An order of sale is an execution within the meaning of the statute. See Sears v. Hanks, 14 Ohio St. 302. An attachment is only “ an execution in advance.” It seizes property no more strongly than an execution; and the question of exemption from it must always be raised after levy. The question of exemption was not raised at the rendition of the judgment with said order of sale. A question cannot be said to be “ adjudicated ” — -to be finally adjudicated — which is not considered by the court. The adjudication of a court is always made under, and subject to, existing statutory provisions applicable.
    2. The debtor may make the selection at any time before sale. 70 Ohio L. 51.
   "White, J.

The only question in this case is, whether the right of Sinclair, the judgment debtor, to hold the safe and the wheat exempt from sale, was waived.

It is claimed on behalf of the plaintiffs in error, that the orders of sale in the attachment suits had the effect to cut off the right; that such orders, in effect, adjudged that the defendant had no right to hold the attached property exempt from sale.

We do not think so. The effect of the attachments and the subsequent oi’ders of sale, was no greater in regard to the right of exemption, than would have been had by a judgment and execution thereon, levied on the same property.

The waiver is also claimed to arise from the fact that the debtor made no selection at the time of the levy of the attachments, and that he subsequently made a general assignment of all of his property for the benefit of his creditors. The assignment was made on February 17, 1874, and included the attached property subject to the attachments, as well as his other property. Whether the attachments would be effective or not, depended upon the plaintiff’s recovering judgment in the attachment suits. If they failed to prosecute their suits to judgment, or rather, if judgment should be rendered for the defendant, the attached property would pass under the assignment. Subsequently to the assignment, at the June term of the court, 1874, judgments were recovered by' the plaintiffs, and the orders of sale made.

The property now in question was selected by the debtor on August 4,1874, — six days before the time fixed for the sale, —and was set off and appraised by the officer, on the 8th of the same month. The question is, whether there was such delay in making the selection, as to operate as a waiver of the right. We think the statute, which declares that the selection may be made at any time before sale,” requires the question to be answered in the negative. 70 Ohio L. 51. We doubt not the right to make the selection may be waived by the debtor, as was held in Butt v. Green (29 Ohio St. 667); but we find no circumstances in the present case to justify us in holding that he had waived the right.

Judgment affirmed.  