
    Roig v. Schults.
    1. A homestead is subject to a judgment or execution lien both before and after the same is demanded and set off to the debtor. MeOomb v. Thompson, ante, 139.
    2. In an action to subject lands, alleged to have been fraudulently transferred, to the payment erf a j udgment, an answer by the j udgment debtor, that he is a resident of Ohio, the head of a family and entitled to hold the premises as a homestead, is no defense.
    3. In such action, when the fraudulent sale is established, and it is further found that the premises are subject to a prior mortgage lien, as against ■which a homestead cannot be demanded, it is not error to decree the sale of the property, and the payment of costs and the mortgage lien from the proceeds.
    4 But a further order in such action, that, after the payment of the mortgage, the proceeds of sale should be applied to the satisfaction of plaintiffs, judgment, to tie exclusion, of the claim of the debtor in lieu of a homestead, is erroneous.
    5. After the sale and the payment of liens against which no right of homestead exists, the question of precedence between other lions and the claim of the debtor in lieu of a homestead must be adjudicated by the court. Section 5440, Rev. Stats.
    MotioN for leave to file a petition in error, to the District Court of Lorain county.
    On October 23,1882, Scbults recovered a judgment against John G. Roig for $057.21 and costs, in.the court of common pleas of Lorain county, and caused execution thereon to be levied on the land in controversy, as the property of the defendant Roig, situated in said Lorain county.
    The legal title to" this land was in Amanda Roig wife of said John G. and the same was subject to a mortgage executed by Roig and wife for $2,000, then owned by one Jennie S. Coates; whereupon Schults, in January 1883, commenced the original action, against Roig and wife and Coates, to subject the land to the satisfaction of his judgment, alleging among other things, that Roig had procured the title to be placed in his wife to defraud his creditors.
    The allegations of fraud were denied by the answer of Roig and wife, and by the separate answer of John G. Roig it was claimed that the land in controversy, was the homestead of his family, and if the court should find the same to be his property, he asked that the same should be set off to him as a homestead under the laws of Ohio.
    By answer and cross petition Jennie S. Coates sot up the lien of her mortgage of February 10, 1882, and prayed for an account and relief.
    The district court of Lorain county, to which the cause had been taken by appeal, found in favor of the plaintiff, as to the fraudulent title of Amanda Roig, and in favor of Jennie S. Coates, as to the validity and priority of her mortgage lien, and as to John G. Roig, that he was a resident of Ohio, the head of a family and occupied the land in controversy,-as his family homestead. Whereupon a decree was entered for the sale of the premises, and that out of the proceeds, there should be paid :
    First. The cost of suit.
    Second. The amount of Coates’ mortgage.
    Third. The plaintiffs’ claim.
    Fourth. The balance, if any, to be paid to Amanda Roig. In addition to the above it was also decreed, “ That nothing in this decree shall be taken or held to deny or prejudice the rights of said defendants, John G. and Amanda Roig, to demand any and all exemptions they or either of them may hereafter be entitled to under the laws of Ohio.”
    It is now alleged for error, that the decree of the court was not justified by the facts found.
    
      E. G. c& IF. II. Johnson, for the motion.
    
      Johnson & Leonard, contra.
   McIlvaine, J.

We have held at the present term in McComb v. Thompson, ante, 139, that the homestead of a debtor is subject to a judgment or execution lien before, as well as after, the same has been set off on demand of the person entitled to hold the same exempt from sale! It therefore follows, that the demand for a homestead, as set up in the answer of Roig, was no defence to the cause of action alleged in the petition below. The plaintiff below, upon proof of the facts alleged in his petition, was entitled to a judgment establishing his lien on the premises, whether a sale, as against the claim of a homestead could be enforced or not.

In the case presented to the court below, as appears by the record, the existence of a mortgage lien in favor of Coates, against which the right of a homestead exemption could not be asserted, was admitted. To satisfy such mortgage lien, the decree for the sale of the premises was correct; as was also the order of the court directing the payment of costs and of the mortgage lien out of the proceeds. Until the costs and the mortgage lien were fully satisfied no question, as to precedence between the plaintiff’s judgment and the right of defendant’s exemption in lieu of a homestead, could arise. The right of a homestead proper, was, of course, terminated by a sale of the property. We think, therefore, the court below erred in ordering the payment of plaintiff’s claim after the payment of the mortgage, without waiting to ascertain whether an exemption in lieu of a homestead having precedence over plaintiff’s judgment, did not then exist. See Cooper v. Cooper, 24 Ohio St. 488, and also Lee v. McConville, 31 Ohio St. 447.

The fraudulent placing of the title to the. land in controversy in his wife, by the judgment debtor, did not, as against the judgment creditor, bar the right of the debtor to demand a homestead or an exemption in lien of a homestead. See Sears v. Hanks, 14 Ohio St. 298, and Tracy v. Cover, 28 Ohio St. 61.

The motion will therefore be granted and the judgment of the district court modified as above indicated.  