
    McComb v. Thompson.
    1. When a transcript of a judgment rendered by a justice of the peace is duly filed in the office of the clerk of the court of common pleas, such judgment becomes a lien, as against the debtor, on the real estate of such- judgment debtor within the county.
    3. Such lien does not become lost or removed from that part of the real estate thereafter set off as a family homestead, by the assignment and use of such a homestead.
    3. The right to have and hold a homestead is a personal privilege which cannot be conveyed to another, and is lost by neglect or refusal to claim it, or by abandonment of the homestead.
    4. When the rights of homestead are removed, liens on such property may be enforced by due process of law.
    Error to tbe District Court of Allen county.
    Joseph C. Thompson, one of the defendants in error, filed liis petition in the court of common pleas of Allen county, setting up in substance, that on October 5, 1878, he recovered a judgment before a justice of the peace in Ottawa township, Allen county, Ohio, against William McComb, Jr., and that on said October o, 1878, a transcript of said judgment was filed in the office of the clerk of the court of common pleas of Allen county, and entered on the execution docket.
    
      That at the time of the filing of said transcript in the office of the clerk of said court, and the entering of the same upon said execution docket, the said William McComb, Jr., was the owner in fee simple of certain real estate. situated in Allen county. That on the 7th day of May, A. D. 1880, William McComb, Jr., and Frankie E. McComb, his wife, sold and conveyed the said premises to Joseph W. Satterthwait, who is now the owner of the same, subject to the lien of the plaintiff thereon.
    It is further averred that on the 15th day of August, A. D. 1880, he caused an execution to issue from the court of common pleas of Allen county, on the judgment aforesaid, and on the same day said execution was levied on the real estate described.
    The other defendants in error were made defendants, claiming an interest in, or as having liens upon the premises.
    The plaintiff below prays that the conveyance of the premises from William McComb, Jr., and wife, to Joseph Satterthwait, be set aside, and the premises ordered to be sold to satisfy his judgment against William McComb, Jr.
    William L. Porter, one of the defendants below, and a defendant in error here, filed an answer and cross petition, setting up, that on October 4, 1878, he recovered a judgment before a justice of peace, of Allen county, against William McComb, Jr., and that on the same day he filed a transcript of the judgment in the office of the clerk of the court of common pleas of Allen county, and the same was entered on the execution docket.
    He then avers: “ That at said date (the filing of the transcript), and for a long time prior thereto, the said William McComb, Jr., was the owner in fee simple of the premises in the plaintiff’s petition herein described. .
    “ That said William McComb, Jr., with his wife, Frankie E McComb, on the 7th day of May, 1880, sold and by deed of general warranty conveyed the premises to Joseph W. Satter-thwait, in fee simple, who is now the holder of the legal title thereto.
    “ That on the 15th day of August, A. D. 1880, this defendant caused execution to be issued out' of the said court of common pleas upon the judgment, and the same was on the 15th day of August, 1880, levied upon the premises in the petition described, as the property of said William McComb, Jr.”
    The prayer is that the deed to Joseph W. Satterthwait from William McComb, Jr., and Erankie E. McComb, may be declared null and void as to the judgment and lien of William L. Porter upon the premises, and may be set aside as to the judgment and lien, and the premises ordered to be sold, and the judgment and lien satisfied out of the proceeds of such sale.
    The Royal Baking Powder Company, Woodworth & Stevenson, Thomas Kean & Co., Maddox Brothers, Sullivan, Burk & William Glenn & Sons, defendants below, filed like answers and cross petitions, setting up and claiming like liens on the premises, obtained in like manner as that of the plaintiff below and William L. Porter, and each praying for same decree as above.
    William McComb, Jr., defending under his covenants against incumbrances contained in his deed to Joseph Sat? terthwait for the premises described in the petition, filed an answer averring:
    
      “ That the premises described in the petition were purchased by and conveyed to said William McComb, Jr., in fee simple, on or about the 1st day of May, 1873.
    “Thaton or about the 20th day of December, 1878, the. said premises were, upon the demand of said William Mc-Comb, Jr., set off and assigned to said William McComb, Jr., as and for a homestead, exempt from levy and sale upon execution, by the sheriff of Allen county, Ohio, by virtue of proceedings under an execution in his hands, issued upon a judgment rendered in the court of common pleas of Richland county, Ohio, against the said William McComb, Jr., and in favor of Thomas E. Davis, which said assignment of said premises to said William McComb, Jr., as a homestead, remained in full force, and no further proceedings in relation to said homestead were ordered, or have been since taken by the court, and that said premises were so occupied as a homestead, up to the time of, and after the sale of the same to said Joseph Satterthwait by the said William McOomb, he, the said Wm. McOomb, Jr., being then, continued to be, and now is, the head of a family, a resident of Ohio, and not the owner of any other property, either personalty or realty.
    “The said William McOomb, Jr., for further answer unto the -petition and the several answers and cross petitions herein, says:
    “ That for the purpose of the support of himself and family, and to furnish him means to engage in business for the support of himself and family, he sold and conveyed in fee simple, the premises described in the petition, ’to Joseph Sat-terthwait, on the 7th day of May, 1880, for the sum of one thousand dollars, and that he has so used the proceeds of the sale of said premises.”
    To this answer, the plaintiff below and the several defendants who had filed answers and cross petitions, demurred.
    A demurrer also seems to have beep filed by Joseph Sat-terthwait, to the several answers and cross petitions, which was never ruled upon.
    The demurrers to the answer were sustained, and a decree rendered setting aside the conveyance from William McComb, Jr., and his wife, to Joseph Satterthwait, and the premises ordered to be sold to satisfy the various judgments set up in the petition and cross petitions, and the costs. To this decree the plaintiffs in error excepted.
    On petition in error in the district court, this judgment and decree was affirmed.
    To reverse this judgment of affirmance, as well as the judgment and decree of common pleas, this proceeding in error is prosecuted by Wm. McOomb, Jr., and Joseph Satterthwait.
    The errors complained of and assigned in the district court are as follows:
    I. That said court of common pleas erred in sustaining the demurrer to the answer.
    II. That said court erred in finding and decreeing, that the several judgments in behalf of the defendants in error respectively, were valid and subsisting liens upon the premises described in the petition of the plaintiff below.
    III. That said court erred in decreeing that the deed from William McComb, Jr., and wife, to the said Joseph Satter-thwait be set aside.
    IY. That said court erred in ordering said premises to be sold at judicial sale, and that the proceeds be applied to the payment of the respective judgments in favor of said defendants in error.
    
      Isaiah Pillars, for plaintiff in error :
    I submit that the homestead being determined, as in the case at bar, it stands exempt from execution, and is not “ bound ” for the payment of any judgment. That is, that there can not arise or exist, by operation of law, any lien against the homestead for the payment of a judgment against the owner. There can be no judgment lien with no right to enforce it. A lien without the right to make it effective, without the right to enforce it, is an absurdity. There can be no such thing as a lien lying in abeyance, dormant, slumbering, waiting for some event to happen to give it life or vitality, so that it may be enforced. ' I sáy that it is an absurdity. A lien must have life. The law recognizes no suspension of it. A court of chancery may sometimes temporarily enjoin its enforcement, for the purpose of determining rights. Where the right to enforce does not exist, there can be no lien. Freeman on Execution, § 249. Thus, I submit, the homestead as against judgment liens being unincumbered, the owner has the right to sell, and the purchaser takes the title free from all judgment liens. By selling, the owner of the homestead commits no fraud on the rights of his creditor. He sells nothing the creditor can touch. He sells nothing he can subject to the payment of his claim. It is held in the case of Woodman v. Paige, 5 Ohio St. 71, “ That a release of dower in a deed executed by husband and wife, without consideration, to defraud creditors, will not estop her to claim dower against the grantee, or any purchaser from him without notice. No fraud can be imputed to her because of such release, for the reason that she releases nothing that could be taken by her husband’s creditors.” Similar doctrine is held in Sears v. Shanks, 14 Ohio St. 298, and Traey v. Cover, 28 Ohio St. 61. And so, in the case at bar, McComb, in selling the premises described in the petition, sold nothing his creditors could touch. And Satterthwait took the land free from the lien of the judgments. Rorer on Jud. Sales, §556 ; 1 Am. Law. Reg. N. S. 715; Oreen v. Marks, 25 Ill. 221; Morris v. Ward, 5 Kan. 239 ; Lamb v. Shay, 14 Iowa, 567; Commins v. Lory, 16 Iowa, 41; Fishhack v. Laru, 36 Ill. 437, 44 Ill. 175; Kovalk v. Kram,er, 8 Cal. 66 ; Bliss v. Clark, 39 Ill. 596 ; Wiggins v. Chance, 54 Ill. 175; Hamworth v. Tra/ois, 67 Ill. 301; Houghton v. Lee, 50 Cal. 108; Black v. Epperson, 40 Tex. 162, 187; Oeapon v. Stephenson, 17 Kan. 617; Martin v. Meredith, 71 N. C. 216; Johnson v. Harrison, 41 Wis. 381; Ooodwell v. Blumer, 41 Wis. 436.
    
      Richie & Richie, for defendant in error:
    We submit as the law of Ohio: 1st. That a lien, having once 'attached, continues so long as the judgment has life. 2d. That such lien, by assignment of homestead, is not canceled, but that its enforcement by sale is prevented, so long as the premises so assigned remain the home of the debtor’s family, and no longer. 3d. That 'such lien is not divested or canceled by forbidding a sale under it, no more than a lien of a judgment is divested by the filing of a supersedeas bond. 4th. That an act of the debtor in selling and conveying the homestead cannot deprive the judgment creditor of his rights under the lien conferred by statute; while it does bar the debtor’s right to longer claim such property as a homestead. It is a waiver — a renunciation of such right. 5th. That Sat-terthwait, having taken the land subject to these liens, with full knowledge, cannot be permitted to dispute their validity any more than he could, had they been created by a mortgage executed by McComb. The authorities cited by plaintiff in error .from other states than Ohio do not apply here as our statutes relating to exemptions are not similar to those of those states.
   Follett, J.

Did the district court err in affirming the judgment of the common pleas? This depends upon the meaning of certain statutes of Ohio.

As between debtor and creditor, the law of Ohio makes humane provision, not so much for the debtor himself as for the benefit of his family — the wife and the children ; and does not overlook the interest of the creditor. It has sought to protect each as an honest citizen, trying to perform every obligation. And the people of Ohio look to her laws for homestead rights and judgment liens.

I. As to judgment liens on this real estate. The petition and cross petitions below set up judgments obtained before a justice of the peace, transcripts of which were filed in the office of the clerk of the court of common pleas of Allen county, where the real estate was, in October 1878 ; that William McComb, Jr., then owned the real estate, but that he sold and conveyed the same to J oseph W. Satterthwait, May 7, 1880.

Revised Statutes, section 5377, provide: “ The party in whose favor a judgment is rendered by a justice of the peace, . . may at any time after the day the judgment is rendered, if the same be not appealed or stayed, file in the office of the clerk of the court, of common pleas of the county in which the judgment was rendered a transcript thereof, having certified therein the amount, if any, paid thereon ; and thereupon the clerk shall enter the case on the execution docket, together with the amount of the judgment, and the time of filing the transcript,” etc.

Section 5378. Such judgment, if the transcript be filed in term time, shall be a lien on the real estate óf the judgment debtor within the county, from the day the transcript is-filed ; and if filed in vacation, the judgment shall, as against the debtor, be a lien from the day it is filed, but as against other transcript is filed in vacation, and- judgments rendered at the next term of the court, it shall be a lien only from the first day of the next term.”

“ Section 5379. Execution may be issued on such judgment at any time after filing the transcript, as if the judgment bad been rendered in court; but the lien shall remain as provided in the preceding section.”

The above provisions are plain; and the facts show that the judgments became liens on the real estate in October, 1878, and the homestead was not set off and assigned until December 20, 1878, more than two months after the liens attached.

There is no question here as to whether or not a judgment lien can attach to a homestead set off on demand, as no such judgment is in this case.

It matters little whether or not at common law lands were liable to execution sales, or what rights were given by the Statutes of Westminster, 13 Elizabeth, or what statutes other states may have passed. And we do not determine what might be the best policy as to exemption laws. We have to apply the law as we understand it. And we think the judgment liens attached to the premises before the homestead was set off.

II. Did tiie liens become detached ?

The premises described in the petition were purchased by, and conveyed to, William McComb, Jr., about May, 1878; and on or about the 20th of December, 1878, the same, upon demand, were set off and assigned to William McComb, Jr., as and for a homestead.

The claim is, that by this assignment of a homestead the judgment liens became detached, and thereafter the lands assigned as a homestead were held freed of the liens.

From time to time the amount in value that could be held in a home, as against a just debt, was increased, so that in 1878 it was one thousand dollars, as is now provided in Revised Statutes, section 5435 : Husband and wife living together, a widow or a widower living with an unmarried daughter or unmarried minor son, may hold exemptfrom sale, on judgment or order, & family homestead not exceeding one thousand dollars in value; and the husband, or, in case of his failure or refusal, the wife, shall have the right to make the dem.and therefor; but neither can make such demand if the other has a homestead.”

Thus our laws regard a homestead as a personal privilege which the husband mag fail or refuse to claim, when the wife shall have the right to make the demand, but she may- or may not exercise the right. Conley v. Chilcote, 25 Ohio St. 324; Butt v. Green, 29 Ohio St. 667; Chilcote v. Conley, 36 Ohio St. 547; Carpenter v. Warren, 38 Ohio St. 416.

Section 5438 also provides- — •“ The officer executing any writ of execution founded on a judgment or order, shall, on application of the debtor, his wife, agent, or attorney, at.any time before sale, if such debtor has a family, and if the lands or tenements about to be levied upon or any part or parcel thereof, constitute the homestead thereof, cause the inquest of appraisers, upon their oaths, to set off to such debtor, by metes and bounds, a homestead not exceeding one thousand dollars in value . . . and if no complaint be made by either party, no further proceedings shall be had against the homestead; but the remainder of the debtor’s lands and tenements, if any there be, shall be liable to sale on execution ; upon complaint of either party, and upon good cause shown, the court out of which the writ issued may order a re-appraisement and re-assignment of the homestead ; but if no applica-. tion be made during the lifetime of the debtor, it may be made by the widow of the judgment debtor at any time be-. fore a sale.” The proceedings stop, and the liens remain attached, and the homestead may be re-appraised and reassigned.

“Section 5439. When the homestead ot a debtor in execution consists of a house and lot of land which, in the opinion of the appraisers, will not bear division without manifest-injury and inconvenience, the plaintiff in execution-shall receive, in lieu of the proceeds of the sale of the homestead, the amount over and above, one hundred dollars, annually, adjudged by the appraisers as a fair and reasonable rent for the same, until the debts, costs, and interest are paid; . . . . if the rent be not paid quarterly, as above provided, or within ten days after each and every payment becomes due, the officer shall proceed and sell the homestead; . . . the-plaintiff in execution, the judgment debtor, or any other person to whom, under any law of this state, such homestead has 'been set off, may cause the homestead to be re-appraised once in two years, in the same manner as provided in the preceding section, and the rent shall, after such re-appraisement, be paid in accordance therewith,” etc. Here, as above, the homestead may be re-appraised, and if the proper rent be not paid quarterly the homestead may be sold for not less than its appraised value. The judgment liens remain attached ; but the proper parties may hold exempt from sale the homestead, provided the rent be paid, (if rent be due) and they hold the same for a homestead. In no place does the statute provide that judgment liens shall be detached, or that homesteads shall be held fréed of judgment liens. And section 5440 seems to include just such liens, “ When a homestead is charged with liens, some of which, as against the head of the family, or the wife, preclude the allowance of a homestead to either of them, and others' of such liens do not preclude such allowance,” etc. Judgment liens cannot destroy or disturb the home. The leading object of the homestead exemption is, of course, to protect the home.- — a home not for the husband alone, but for him arid his wife, and children.”' Judge J. F. Dillon. “Aplace where they, may live in society beyond the reach of financial misfortune and the demands of creditors.” Parsons v. Livingston, 11 Iowa, 106; Beecher v. Baldy, 7 Mich. 506; Robinsons v. Wiley, 15 N. Y. 489. A homestead may l>e held perfectly secure from judgment liens, even'though the judgment liens are used to preserve, for another home, some means of support.

The assignment of the homestead did not detach or remove the judgment liens.

III. Did McComb sell the land freed of the liens ?

We think the liens remained.

McComb avers, “ That for the purpose of the support of himself and family, and to furnish him means to engage in business for the support of himself and family, he sold and conveyed in fee simple, the premises described in the, petition, to Joseph Satterthwait, on the 7th day of May, 1880, for the sum of one .thousand dollars, and that he has so used the proceeds of the sale of. said premises.”

This is all we know about it. He claims he should have a right to change his homestead, but does not claim he secured or tried to secure another homestead ; and he also claims he should hold a $1,000 homestead, just as the law permits him to hold $500 in lieu of a homestead, but he does not tell us whether any part of this proceeds remains for the benefit of the wife and children for whom mainly the homestead was set off. If any part be held in lieu of a homestead, it can be but five hundred dollars’ worth.

Our laws make a wide distinction between holding a homestead of one thousand dollars worth exempt from sale, and holding-in lieu of a homestead five hundred dollars’ worth exempt from levy and sale. Judgments are not liens on goods and chattels until a levy is made on them.

The statutes provide that what is held in lieu of a homestead — that with which the comforts of a home may be secured —may be held exempt from levy and sale; but that a homestead may be held exempt from sale; and do not seek to free it from the judgment liens already upon it.

And it is certain that the judgment liens, which were upon the land while a homestead occupied by McComb’s family, would remain thereon when McComb’s interest was transferred to Satterthwait, and McComb abandoned the homestead; and Satterthwait did not hold the land freed of the judgmént liens.

IY. Could the land be sold to pay the liens ?

The court did not err in setting aside the deed as to the judgments and liens thereof, and ordering the land sold for the satisfaction of the liens.

The liens were upon the land when the deed was given, and the sale of the land to satisfy the liens had been stayed only by the homestead held by McComb. McComb does not claim that he held the same as a homestead after May 7,1880, when he sold and conveyed the same to Satterthwait, and abandoned it as a homestead. No one claims that Satter-thwait held the land as a homestead for McComb or his family. Mrs. McComb had signed the deed, and abandoned the homestead. And the homestead being out of the way, there is nothing shown that should longer stay the sale of what was once the homestead.

This is in accordance with Allen v. Cook, 26 Barb. 374, and Smith v. Brackett, 36 Barb. 571, and other cases.

The case of Wehrle v. Wehrle, 39 O. S. 365, is not like this case. In that case an executor sought to sell land subject to a widow’s homestead. The cases are not in conflict, but different.

There was no error, and the judgment is affirmed.  