
    Wildermuth v. Koenig.
    In October, 1877, the judgment of W. against K. became a lien upon K.’s real estate. In June, 1878, but before the property was about to be levied upon or seized under an order of sale, it was occupied by K. and his family as a homestead.
    HeldThat under an order for the sale of the premises, issued in January, 1879, and as against such judgment lien, K. is entitled to an assignment of a homestead in such property.
    Error to the District Court of Meigs County.
    At the October term, 1877, of the court of common pleas of Meigs county, the plaintiff in error obtained a judgment against Y. Koenig upon causes of action which arose subsequent to the taking effect of the act of 1869 exempting the homesteads of families from sale on executions. Prior to the rendition of this judgment, in September, 1876, Koenig and wife conveyed the real estate involved in this action to one C. J. Diehl, who at once re-conveyed the property to Elizabeth Koenig, the wife of V. Koenig. Wildermuth, the plaintiff in error, in his petition in the court of common pleas, asked that the deeds of Koenig and wife to Diehl and of Diehl to Mrs. Koenig, be declared null and void and that they be wholly set aside and that said real estate be ordered to be appraised, advertised and sold and the proceeds of the sale applied to the pajrment of his judgment and costs. Issues on the allegations of the petition were raised by the answer of the defendants. The court found that the deeds were fraudulent and in September, 1878, granted the prayer of the petition. Under this decree the land was sold, but at the May term, 1879, the court on motion of the defendant Koenig, set the sale and appraisement aside, it having been made to appear to the court that Koenig, in due time and form demanded his homestead under the statute and that the sheriff ignored the same.
    It is claimed that the court of common pleas erred in sustaining this motion and that the district court erred in affirming the judgment of the court of common pleas, The admitted facts are that the lien of Wildermuth’s judgment attached to Koenig’s real property upon the first day of the October term, 1877, and that the real property now claimed as a homestead did not become such until June, 1878.
    
      Guthrie & Giles, for plaintiff in error.
    In order that the quality or character of homestead may be imparted to real estate, two things must concur. The party must intend to make the property his permanent family residence; and he must actually occupy and use it as such. Neither alone will be sufficient. The result then is that the owner of real estate has a purely statutory right to impress upon it a character which the law regards as in some sense sacred. But until that be done, it remains his general property, liable, as other property, to be applied to the payment of his debts. Gibson v. Mundell, 29 Ohio St., 523, 527. This right of the owner is not to be confounded with another right which he has under the statute; that is the right to demand that his homestead be set off, when the sheriff is about to levy execution. He has no right to demand that realty shall be set off to him to be then or thereafter, for the first time, occupied as a homestead. His right is to demand that the sheriff shall respect and treat as his homestead, the property to which he has already imparted that character.
    
      Grosholz v. Newman, 21 Wall., 481, was an action to set aside a deed on the ground that the premises were a part of the family homestead, and the wife had not joined in it, the constitution of Texas providing that, as to a homestead, “ the owner thereof, if a married man, shall not be at libberty to alienate the same, unless by the consent of the wife.” See page 486. Thompson on Homesteads and Exemptions, ch. 3.
    The lien of the plaintiff’s judgment was a vested right of property and as such protected by the constitution of the United States; and neither the defendant nor the legislature of Ohio, could lawfully withdraw the land from that lien without the plaintiff’s consent. Green v. Barry, 15 Wallace, 610, expressly decides this.
    
      Ira Graham and W. N. Lasley, for defendant in error.
    The second section of the act of 1869 (66 Ohio Laws, 49), provides that the sheriff or other officer executing any writ of execution founded on any judgment or decree, such as is mentioned in the first section of this act, on application of the debtor, his wife, agent or attorney, at any time before sale, *• * * * * shall set off to such debtor a homestead not exceeding one thousand dollars in value.
    It is an admitted fact that Koenig was the head of a family, living with his wife and children in the real estate in question at the time of the levy and sale of said property, and that a homestead was legally demanded to be set off by the sheriff.
    The legislature enacted the homestead laws for the benefit of the wife and children — the family of the debtor. Hence the courts, with few exceptions, appear to be now agreed that these statutes, beneficial in their operation and founded in a wise policy, should be liberally construed so as to give full effect to the intention of the legislature. See Roff v. Johnson, 40 Ga., 555; Bevan v. Hayden, 13 Iowa, 122; Buxton v. Dearborn, 46 N. H., 44; True v. Morrill, 28 Vt., 674; Montague v. Richardson, 24 Conn., 338; Moss v. Warner, 10 Cal.; Robinson v. Wiley, 15 N. Y., 469; Campbell v. Adair, 45 Miss., 178; Kuntz v. Kinny, 33 Wis., 510; Deere v. Chapman, 25 Ill., 610; Franklin v. Coffu, 18 Texas, 416; Marsh v. Larenby, 41 Ga., 153, and many others.
    The protection of the family from dependence and want is the express object of all the homestead exemption laws. The immunities created by these statutes are 'extended to this association of persons, or the head thereof, for the benefit of all the members of the family; and the state of Ohio, through its legislature, by special enactment, has pointed out the manner in which the debtor, his wife, agent or attorney may proceed to procure for the family the benefit of said exemption, to wit: at any time before sale to apply to the proper officer for a set-off under the law. This was done by Koenig long before; and at the time of demanding a homestead he occupied the premises as a homestead, and did on the 16th day of January, 1879, demand of the sheriff a set-off under the Homestead Act. Said, premises were not sold until twenty-three days afterward, to wit: on the 8th day of February, 1879. The law having been strictly complied with, Koenig was at that time entitled to the benefit of the exemption which the sheriff wrongfully ignored; for as long as Koenig actually resided in the state and used the property as a home he can not be denied the benefits secured by the law. Dawley v. Ayres, 23 Cal., 180; Buxton v. Dearborn, 46 N. H., 43; Bunker v. Locke, 16 Wis., 638.
    If at any time before the sale of the property Koenig occupied the premises as his homestead, he is entitled to the exemption allowed by law. Trotter v. Dolls, 88 Miss., 198; Irwin v. Lewis, 50 Id., 363 ; Macmanus v. Campbell, 37 Texas, 267; Hawthorne v. Smith, 3 Nev., 182; North v. Shearn, 15 Texas, 174; Furman v. Dewell, 35 Iowa, 170; Cooper v. Cooper, 24 Ohio State, 488; Close v. Sinclair, 38 Id., 533.
    Under our statute there never comes a time when the “ quality or status of a homestead ” is or can be impressed upon a piece of real estate until an execution is issued and a levy is made; for then only can be made a demand for a set-off. The land owner may waive his right to a set-off under the homestead act, then as between him and the judgment creditor and all other lien holders, all liens remain in force. But if he demands a set-off, all judg•ment and execution liens yanish from the property selected.
   Nash, J.

The important question to be decided in this case arises under the homestead act of April 9, 1869 (66 Ohio Laws, 48). The debt upon which Wildermuth obtained his judgment was contracted after the enactment of this law. The judgment became a lien upon a certain parcel of real estate belonging to the defendant in error' upon the first day of the October (1877) term of the common pleas court. The real estate was' not used as a homestead until June, 1878. The principal question presented is: “Was the judgment debtor, as against this lien, entitled to the assignment of a homestead in the premises? ”

The determination of this question must depend largely upon the intention of the legislature as it is made manifest in the homestead act of 1869. The supreme court, in speaking of the homestead act of 1850, said, in effect, that its object was not to protect the debtor, but to protect his family from the inhumanity which would deprive its dependent members of a home, and further said that “ in aid of this wise and humane policy, the whole act should receive as liberal a construction as can be fairly given to it.” Sears v. Hanks, 14 Ohio St., 298.

The legislature in the act of 1869 had in mind the same liberal policy, and by its amendments to the act of 1850 increased the benefits given to the families of debtors. Remembering that the statute must be given a liberal construction, we now proceed to consider it in connection with the question made in this case.

Section one gives to the head of a family the right to have a homestead exempt from execution, and reads as follows : “ That the family homestead of each head of a family shall be exempt from sale on execution on any judgment or decree rendered on any cause of action accruing after the taking effect of this act, provided that such homestead shall not exceed one thousand dollars in value.”

One of the prominent features of this section is that the legislature was careful not to impair the obligations of existing contracts. It provided that the exemption should only be given in cases founded upon causes of action arising after the taking effect of the act. The language of the section is broad enough to cover any real estate impressed with the character of a homestead at the time a levy or seizure is about to be made. A legislature so careful as this one seems to have been in exempting from the provisions .of this act judgments upon causes of action accruing prior to its taking effect, would have made another exception if it had intended that its broad words should not cover real estate taking on the character of a homestead after a judgment lien had attached, but before the premises were about to be seized upon execution or order of sale.

Section two of this act only provides the manner in which, the right given to debtors and their families by section one may be secured, yet its words are significant as showing the intent of the general assembly. The following are its words:

“ That the sheriff or other officer executing any writ of execution founded on any judgment or decree, such as is mentioned in the first section of this act, on application of the debtor, his wife, agent or attorney, at any time before sale, if such debtor have a family, and if the lands or tenements about to be levied icjpon, or any part or parcel thereof, shall be the homestead thereof, shall cause the inquest of appraisers, etc.”

We are not compelled to resort to a liberal construction of these words to see that the legislature intended that real estate having the character of a homestead, when it is about to be levied upon, should be set off for the use of the debtor’s family. A literal construction gives this meaning to them.

Section four recognizes two classes of liens — liens which preclude the allowance of a homestead and liens which do not preclude such an allowance.

The supreme court in the case of Gibson v. Mundell, 29 Ohio St., 523, held that a mortgage lien created by the debtor before the premises had been impressed with the character of a homestead, was a lien which precluded the allowance of a homestead. We conclude that a judgment lien attaching before the realty has received the characteristics of a homestead, is not a lien precluding the allowance of such homestead. One lien is created by the act of the head of a family for a present consideration. The other is created by the operation of law.

Before real estate has assumed the character of a homestead the owner has the right to convey it to another by a mortgage deed. To subsequently permit him to decrease the value of his contract by taking possession of the property as a homestead, would encourage the practical repudiation of contracts. The same objection does not bar the allowance of a homestead in real property to which a judgment lien 'attached before it became a homestead.

In reaching this conclusion we have followed the evident policy of the act of 1869.

Judgment affirmed.  