
    Genell v. Hirons.
    
      Real property of a judgment creditor — Exempt from levy in lieu of homestead — May he sold hy judgment debtor — Grantee holds free of judgment lien — Section 5441, Revised Statutes— Exemption laws.
    
    Real property of a judgment debtor that is exempt from levy and sale in lieu of a homestead under section 5441, Revised Statutes, when selected and held by such judgment debtor as so exempt, becomes his absolute property with full power of disposition, and if thereafter he sells and conveys the same, such property in the hands of his grantee is not subject to the lien of a judgment obtained against the grantor prior to such sale and conveyance, nor to seizure and sale upon execution in satisfaction of such judgment.
    (No. 8383
    Decided June 21, 1904.)
    Error to the Circuit Court of Clark county.
    On June 6, 1902, the plaintiff in error commenced an action against the defendant in error, J. B. Hirons and others, in the court of common pleas of Clark county, Ohio, whereby she sought to have a marshaling of liens and to subject to sale certain real property in her petition described, against which she alleged she had and held a valid and subsisting judgment lien, as a judgment creditor of one Clyde Blose, who was a defendant in said action. In the court of common pleas the cause was submitted to the court upon the pleadings and the following agreed statement of facts:
    “That on August 1, 1895, the plaintiff recovered a judgment before W. S. Neese, a justice of the peace 'of Clark county, against defendant, Clyde Blose, for the sum of thirty-six dollars and forty-two cents ($36.42), no part of which nor the costs thereon have been paid. That said plaintiff is the owner of said judgment. That at the time said judgment was rendered and transcript thereof filed with the clerk of the court of common pleas, Clark county, Ohio, and at the time of the first levy or attempted levy hereinafter mentioned and until the execution and delivery of the deed hereinafter mentioned, the defendant, Clyde Blose, was the owner in fee simple of lot No. 169 in Blose’s addition to said Tremont City, German township, Clark county, Ohio; and that during all of said times said Clyde Blose was a married man, living with his wife and the head of a family, a resident of said state of Ohio, and neither he nor his wife were the owners of a homestead, nor personal or real property above the value of three hundred dollars ($300). That the value of said lot No. 169 is one hundred dollars. That on August 14, 1895, the plaintiff caused a transcript of said judgment to be filed with the clerk of the court of common pleas, Clark county, Ohio, and on the same day, to-wit, August 14, 1895, an execution was issued thereon to the sheriff of Clark county, Ohio. That oh the same day, to-wit, August 14, 1895, said sheriff proceeded to levy upon said lot No. 169, and on September 28, 1895, said execution was returned by said sheriff endorsed as follows: ‘Received this writ, August 14, 1895, at 10 o’clock A. M., and pursuant to its command on the same day of August 14, 1895, finding no goods or chattels of the within named defendant, Clyde Blose, whereon to levy I cannot make the amount of this execution on any part thereof, I levied on the following -described real estate as the property of the within named Clyde Blose, to-wit: ‘Situate in the village of Tremont City, county of Clark, state of Ohio, and being lot No. 169 in John H. Blose’s plat of addition to said Tremont City, situate in German township, Clark county, Ohio. This writ returned September 28, 1895. T. 'E. Lott. By Thomas Shocknessy, Deputy.’ That at the time said sheriff levied or attempted to levy upon said lot, said defendant, Clyde Blose, demanded of said sheriff that said lot No. 169 was not subject to levy or sale, and that he was entitled to hold the same exempt from levy and sale, and that he selected said lot as exempt in lieu of a homestead, asked that the same be set apart to him as so exempt, and that neither said Clyde Blose nor said sheriff now recollects whether said lot was actually set off to said Clyde Blose or not. That nothing further was done by the sheriff except as ' shown by his return, except that thereupon the sheriff caused the said lot to be appraised according to law, the value being found at one hundred dollars ($100). That afterwards, to-wit, August 14, 1900, a second execution was sued out on said judgment and •delivered to the sheriff of Clark county, who made, the following return thereon: ‘ Clark county, ss.: Deceived this writ August 14, 1900, at 8 o’clock P. M., and pursuant to its command on the same day of August, A. D. 1900, finding no goods and chattels ■of the within named defendant, Clyde Blose, whereon to levy that I cannot make the amount of this execution or any part thereof, I levied upon the following •described real estate as property of the within named Clyde Blose, to-wit: ‘ Situate in the village of Tremont City, Clark county, state of Ohio, and township of German, and being lot No. 169, John H. Blose’s addition to said Tremont City in German township, Clark county, Ohio, September 17, A. I). 1900, this writ was returned by order of the plaintiff. Thomas Shocknessy, Sheriff.’
    “And no further proceedings was had or done by said sheriff. That on or about May 3, 1901, the defendant, Clyde Blose, for and in consideration of the sum of eighty-one ($81) dollars to him paid, conveyed said lot No. 169 by deed of general warranty to said defendant, J. B. Hirons, who is now the owner of said lot and now in possession of the same.
    “That at the time said second execution was sued out, the said Clyde Blose was a resident of said state of Ohio, the head of a family and not the owner of a homestead, the same as when the first execution was sued out; but at that time no demand was made that the same be set aside as exempt from levy and sale; and that said Clyde Blose had no knowledge of said second levy or that said second execution had been sued out. It is further agreed that the amount due on said judgment is thirty-six dollars and forty-two cents ($36.42), with interest and costs as shown by the execution docket in the clerk’s office of this county in said case.”
    The court of common pleas found and adjudged that Adella Genell had a valid and subsisting first lien upon the premises in her petition described, that J. B. Hirons was the owner of said premises subject to said lien, and ordered that said premises be sold and that the proceeds thereof be applied to the payment of the adjudged lien of said Adella Genell, so far as the same were necessary to the satisfaction and extinguishment of said lien, and that the balance of the proceeds of said sale be paid to J. B. Hirons, the owner of said lot. From this judgment J. B. Hirons prosecuted error to the circuit court of Clark county, where the judgment of the court of common pleas was reversed, the petition of Adella Genell dismissed and an order was made quieting the title of said J. B. Hirons to the lot in controversy against the claims of said Adella Genell. Plaintiff in error now asks that this judgment of the circuit court he reversed and that the ■ judgment of the court of common pleas be affirmed.
    
      Mr. William M. Rock el, for plaintiff in error.
    The question herein involves a construction of section 5441, Revised Statutes, under the agreed facts.
    Judgment liens are created by statute and their extent and duration are such as the statute provides. Tucker v. Shade, 25 Ohio St., 355; The Coal Co. v. Bank, 55 Ohio St., 233; McComb v. Thompson, 42 Ohio St., 139; Roig v. Schultz, 42 Ohio St., 165.
    The making of a levy has nothing to do with a local judgment lien, it neither creates it nor takes it away. While the words judgment or order (section 5435) from the fact that when a judgment is had á lien follows, and an order usually means the enforcement of a lien, might have been held to include judgment liens. There is a sharp distinction between judgment liens on real estate and on personal property. On the latter, there can be no lien until a levy, a seizure of (section 5375) and this levy, or seizure involves a right to hold possession of the property, and therefore if the right be given to hold it exempt from levy and sale, it necessarily prevents the lien attaching, and no lien attaching, the •owner retains his full proprietary rights. But not so as to real estate. A judgment lien does not interfere with the right of possession, nor does possession have anything to do with the lien’s creation, •extent or duration. Therefore real estate to which •a judgment lien has attached, and still exists thereon, could very'consistently he held free from levy and sale, and yet not affect the validity of the lien, .nor the owner’s right of possession.
    In fact, the owner is entitled to possession until -sale is made. Reynolds v. Rogers, 5 Ohio, 169.
    It was not necessary even if an execution be issued that there be a levy. Bank v. Coal Co., 5 Circ. Dec., 421; 11 C. C. R., 424.
    When the judgment debtor claimed the property •exempt from levy and sale, and there was no .further attempt to enforce the execution, did he not .have all the law gave? He did not ask that it .might be freed from the judgment lien? Nor did the law say that his selection would destroy the lien.
    
      The holding of real estate exempt from levy and ■sale, is not inconsistent ivith the existence of liens thereon. Wuest v. James, 51 Ohio St., 232.
    Such holding may prevent their enforcement but does not destroy their existence.
    A judgment lien is a vested right of property and -cannot be satisfied except by payment or release. Smith v. Richard, 2 Idaho, 464; 21 Pac. Rep., 419.
    Much less can it be destroyed by a statute of •doubt and ambiguity. Riddle v. Bryan, 5 Ohio, 48.
    Such rights are carefully guarded by constitutional enactments and judicial decisions.
    It is claimed that even though the statute provides that the judgment shall be a lien on the real estate of the debtor within the county from the day the transcript is filed (section 5375), yet if the real estate is afterwards exempted, the lien never did exist. This is certainly an untenable position. The right to have certain property exempted, i. e., taken eut or from the levy or execution, necessarily follows upon the assumption that there is something attaching to the property that must be removed. If there was no attaching right or lien, there would be nothing from which the selected property need be relieved. And then the right of exemption is a personal right, and if never exercised, never exists. McComb v. Thompson, 42 Ohio St., 139.
    Until the claimant acts, there can be no exemptions. And the time when he should act is when the sheriff is about to execute the writ. Sears v. Hank, 14 Ohio St., 298; Wildermuth v. Koenig, 41 Ohio St., 180.
    There is no presumption that the claimant will select certain property or ever act. Carpenter v. Warner, 38 Ohio St., 416.
    The ■ conclusion then, is irresistible that until a writ is issued, and the property is at least claimed as exempt, that the lien attaches and exists by virtue of the express words of the statute. (Section 5378.) This is fully sustained where a homestead is ■claimed and set apart. McComb v. Thompson, 42 Ohio St., 139; Roig v. Schultz, 42 Ohio St., 165.
    There are no decisions in Ohio upon this part of section 5441, which relates to the setting apart of specific real estate in lieu of a homestead, etc., and text books, citing authorities of other states by reason of the difference of the statutes governing the same, are of little or no value. It is laid down in text books that property, exempt from execution, is unaffected by execution liens and may be sold or transferred even while writs are in the hands of the officer. Freeman on Executions, 197; Black on Judgments, sec. 424.
    A considerable number of decisions may be found holding that where a judgment is acquired before a homestead is set off, that such lien cannot be divested by any subsequent act of the owner. Schuler v. Miller, 45 Ohio St., 331; Black on Judgments, sec. 425.
    It is claimed that because of the humane purpose and the liberal construction given to exemption laws, that the court should hold that the property was absolutely exempt and it could be transferred free from plaintiff’s lien. This is an argument, frequently advanced, but this court has never held that it permitted a right of exemption to exist that was not clearly and unequivocally given by statute. Riley v. Hitzler, 49 Ohio St., 651,
    So it was also held that partners cannot claim exceptions in partnership property, although they all were the heads of families and the owners of no other property and all joined in the demand. Gaylor v. Imhoff, 26 Ohio St., 317.
    If the husband dies, the owner of a homestead, and the same is sold to pay debts, the widow may claim $500 out of the proceeds, yet if he owned land not a homestead and the same is sold to pay debts, the widow can claim nothing. Wolverton v. Paddock, 2 Circ. Dec., 279; 3 C. C. R., 488.
    Certainly the fact whether the land be a homestead or not, could not differently affect the needs of the widow and children; we could reasonably presume that the legislature did not so intend. If the debtor be the owner of a homestead, that is worth but $1.00, he cannot claim $500 worth of other land he may own. Biddinger v. Pratt, 50 Ohio St., 719.
    Nor could he hold it out of chattel property. Bartram v. McCracken, 41 Ohio St., 377.
    This law (section 5441) like every other must be construed according to its language, and cannot be construed otherwise merely because it may fail to give that which may believe or presume was intended.
    It is not what the court may believe the legislature intended that should control, but what is the meaning of that which they did enact. Slingluff v. Weaver, 66 Ohio St., 621.
    The mere fact that certain real estate, at one time, was set apart as exempt, etc., will not exempt it from subsequent executions, unless it be again selected, etc. For perchance at the time the subsequent execution is issued, the debtor may have sufficient other property that same cannot be claimed, or he may have changed his condition in life, so that he does not come within the law, or he may not choose to exercise the privilege. There is no presumption that he will either exercise his right or that he is entitled to exercise it. Carpenter v. Warner, 38 Ohio St., 416.
    The statute (section 5441) is vague, uncertain and defective in this, that no provision is therein found, nor in any other statute, for the ascertainment of the value of the real estate selected, the setting apart of the same by metes and bounds, the' designation of the land selected.
    
      The statute specifically provides that when a transcript is filed, it becomes a lien, etc. (sections. 5377, 5378); now how can this lien be removed from the records, without record be made therein of the fact that the property was set apart as exempt? This record is made so that all persons may have notice of the judgment’s existence. Coal Co. v. Bank, 55 Ohio St., 251.
    When a lien is made by record it should only be removed by the record.
    
    This is a provision alike essential to the judgment creditor as well as judgment debtor. For if it is absolutely exempt as claimed in this case, and of no benefit unless it could be sold, who would be the. purchaser, with a judgment lien standing against it on the record? And then please tell me what is the sheriff to do when certain real property is selected as exempt? He must make some return, what is it? The importance of all these matters are realized by the provisions made in section 5438 in reference to homesteads, etc.
    1. Its value shall be found by appraisement.
    2. It shall be set off by metes and bounds.
    3. It shall be returned with the writ.
    4. It shall be copied into the execution docket.
    None of these provisions are found in section 5441, nor can be made to apply by implication.
    This plaintiff has a perfect right to her judgment lien, until in some valid manner removed by the record. Swift v. Luce, 27 Me., 285; Black on Interpretation of Laws, 59.
    If the real estate claimed as exempt in lieu of a homestead, is to be set off like a homestead, which seems to be the only reasonable view that can be taken, if any effect can at all be given to this section: (5441), then the plaintiff’s lien must be held in force- or the cases of McComb v. Thompson, 42 Ohio St., 139; Roig v. Schultz, 42 Ohio St., 165; and Schuler v. Miller, 45 Ohio St., 330 and 331, must be reversed. Brandon v. Moore, 50 Ark., 247; 7 S. W. Rep., 36; State Bank v. Carson, 4 Neb., 498; Hoyt v. Howe, 3 Wis., 660.
    It is a well settled principle of law that the right-to claim exemptions is personal. It cannot be conveyed to another. McComb v. Thompson, 42 Ohio St., 139; Carpenter v. Warner, 38 Ohio St., 416; Conley v. Chilcote, 25 Ohio St., 320.
    Therefore defendant Hirons can reap no benefit-from the fact that the judgment debtor (Blose) may now be or was at the time the sale was made, in condition to claim the exemptions nor from the fact that the judgment debtor now claims the property as exempt.
    
      Mr. Clem V. Collins, for defendant in error.
    We contend that a construction has been given to-the language used in sections 5441 and 5378, by this-court in the case of McConville et al. v. Lee et al., 31 Ohio St., 447.
    It seems clear that the court in the McConvillecase held, that inasmuch as the statute (now section 5441) provided that real or personal property could be held exempt from levy and sale, it made no difference what character was impressed on the surplus, that is, whether it was to be considered as real or personal property, in any event it would be so exempt. Now if this is true, there can be no mistake that McConville had a judgment lien on the lots and the court found he had a lien on the fund whether to be considered as real or personal property, but yet when selected and demanded in lieu of a homestead by the judgment debtor, the same was allowed to her. Now we wish to inquire of counsel for plaintiff, what became of his judgment lien? Certainly a judicial sale could have no effect on a valid lien so far as the judgment debtor was concerned; it could add no force to the statute nor take any away. If ihe property to the value of $500 was exempt to the debtor under section 5441, it was exempt in lieu of a homestead, and as stated by the court, McComb v. Thompson, 42 Ohio St., 149, stood in the place of a homestead, that is, that with which the comforts of a home may be secured, and the debtor was entitled to it upon demand under the statute whether the same was real or personal property.
    Why make use of the phrase, “-that with which the comforts of a home may be secured?” If Claude Blose could not sell the lot but was required to hold it on account of the alleged lien of plaintiff in error, of what benefit was the exemption to him? How could he secure the “comforts of a home” if the lot was all he had and he could not sell it?
    Upon the question of the construction of sections ■5441 and 5378, we submit the following:
    In so far as two statutes are irreconcilable, effect must be given to the one which is the later. State v. Holliday, 63 Ohio St., 165.
    A later statute whose general provisions are incompatible with an earlier one must be read as an exception thereto. Cincinnati v. Holmes, 56 Ohio St., 104.
    Special statutes for particular cases operate as exceptions to general statutes which might include them. Gas Co. v. Tiffin, 59 Ohio St., 420.
    A special statute relating to a special subject must be regarded as an exception to the more general provisions of another statute. Doll v. Barr, 58 Ohio St., 113.
    We contend that section 5378 is a general provision, while section 5441 is a special statute relating to a particular subject and must be regarded as an exception to section 5378.
    Sections 703, 704, 612 and 613, Revised Statutes of the state of Indiana; Barnard et al. v. Brown et al., 112 Ind., 53 (13 N. E. Rep., 401).
    Now, if the statutes of Ohio and Indiana on the subject of exemption in lieu of homestead are practically the same, and we contend they are, is not the above case analagous to the one at bar and ought not the judgment of the circuit court be affirmed?
    Property exempt from execution is unaffected by execution liens and may be sold or transferred even while writs of execution are in the hands of the proper officer. Freeman on Executions, 197; Pool v. Reid, 15 Ala., 826; Barnard v. Brown, 112 Ind., 53; 13 N. E. Rep., 401; Ray v. Yarnell, 118 Ind., 112; 20 N. E. Rep., 705; Godman v. Smith, 17 Ind., 152; Dumbould v. Rowley, 113 Ind., 353; 15 N. E. Rep., 463; Durbin v. Haines, 99 Ind., 463; Minnich v. Shaffer, 135 Ind., 634; 34 N. E. Rep., 987-989.
    What a debtor does with his property while it is by law exempt from execution is a matter in which his creditors have no concern. Taylor v. Duesterberg, 9 N. E. Rep., 910; also, Burdge v. Bolin, 106 Ind., 175; 6 N. E. Rep., 140; also see collation of authorities; Airey v. Buchanan, 1 So. Rep., 102.
    
      -The ownér has the absolute right to sell or mortgage property exempt from execution, and such sale- or mortgage will be enforced. Cronan v. Honor, 57 Tenn. (10 Heisk.), 353.
    A debtor has the right to convey by voluntary conveyance property exempt from levy and sale. Wright v. Smith, 66 Ala., 514; Carhart v. Harshaw, 45 Wis., 340.
    Where property is exempt from execution by statute, the owner may transfer it free from any claim of his creditors, without regard to the uses to-which he devotes the proceeds, if there be no provision in the statute to the contrary. No prejudice or injustice can be wrought to the creditor by such transfer, for the reason that the property is beyond his reach, and his condition, rights and remedies, would not be affected by the transfer. Waugh v. Bridgeford, 28 N. W. Rep., 626; Bevan v. Hayden, 13 Ia., 122; Frost v. Shaw, 3 Ohio St., 270; Pool v. Reid, 15 Ala., 826; Cook v. Baine, 37 Ala., 350; Godman v. Smith, 17 Ind., 152.
    Upon the question of “selection,” we cite Slanker v. Beardsley, 9 Ohio St., 592.
    In the present ease the lot was all Clyde Blose had. He demanded of the sheriff to have the same as exempt in lieu of a homestead. What more was-required of him?.
   .Grew, J.

The circuit eourt was right in this case in reversing the judgment of the court of common pleas and in rendering judgment upon the agreed facts in favor of the defendant in error.

The property in controversy was property which, under favor of section 5441, Revised Statutes, the judgment debtor, Clyde Blose, had the right to se-. leet and hold, in lieu of a homestead, exempt from both levy and sale.

This fact the plaintiff in error does not dispute. But it is claimed by her that notwithstanding she was without right to seize and sell said property upon execution so long as Blose, the judgment debtor, remained the owner thereof, that he having voluntarily conveyed said property, that she now has the right to enforce her claim against the same in the hands of his grantee, by foreclosure of the lien which she claims to have acquired thereon un-. der sections 5377 and 5378, Revised Statutes, by the filing of her transcript in the court of common pleas. Section 5377, so far as its provisions are pertinent to the question now under consideration, reads as follows: “The party in whose favor a judgment is rendered by a justice of the peace, or mayor of a municipal corporation, may, at any time after 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 ■ * * * Section 5378 provides: “Such judgment, if the tran-. script be filed in term time, shall be a lien on the real estate of 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 transcripts filed in vacation, and judgments ren-. dered at the next term of the court, it shall be a lien Only from the first day of the next term. ’ ’ This section, which was originally section 490 of the code of civil procedure, was passed January 25, 1860. At the time of its enactment the only property a judgment debtor was authorized to select and hold, as exempt from levy and sale in lieu of a homestead, was personal property, not exceeding five hundred dollars in value. At that time no exemption to any ¿amount, in lieu of a homestead, could be claimed by .a judgment debtor in real property; but all the real ■estate owned by such judgment debtor, except his homestead, was subject to the lien of a judgment obtained against him and might be seized and sold upon execution in satisfaction of such judgment. Subsequently, however, by the act of February 27, 1873 (now section 5441, Revised Statutes), the right of exemption in lieu of a homestead was so enlarged and extended by the legislature as to embrace and include real as well as personal property. So that, under the statute as it now is, and as it was at the time the plaintiff in error obtained her judgment against Blose, the latter had the right to hold exempt from levy and sale real property to the amount and value of five hundred dollars, in lieu of a homestead.

"What then were his rights and what the rights of his judgment creditor with- respect to the property so selected and held by him as exempt?

If by the filing of her transcript in the court of common pleas the plaintiff in error, Adella Grenell, by virtue, of the provisions of section 5378, Revised Statutes, thereby acquired an enforceable lien -upon the land or lot in controversy, that survived the selection of this property as exempt, then it must be admitted such lien was not divested by the-subsequent alienation of the property by the judgment debtor. But we think she acquired no such lien, and that the provision of section 5378, that: “Such judgment, if the transcript be filed in term time, shall be a lien on the real estate of the judgment debtor within the county from the day the transcript is filed;” construed and interpreted in the light-of subsequent legislation, must be held to apply to, and as creating or giving a lien upon, only such of the real estate of the judgment debtor as is subject to levy and seizure upon execution. Any other construction, or at least that contended for by the counsel for plaintiff in error, would put this section in conflict with section 5441, Revised Statutes, which is a later enactment, and would make the provisions of the latter section, which exempt real propérty to the value of $500 in lieu of a homestead, practically unavailing to a judgment debtor for the purposes for which such exemption is allowed and given, viz.: the support and protection of his family. As said by this court in McComb v. Thompson, 42 Ohio St., 149, “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. * * * 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.” The exemption which the statute allows by way of homestead is, in a sense, but a qualified exemption, and the law protects from sale the property so exempt, only so long as it is used ana occupied as a homestead. But the exemption which the law gives in lieu of a homestead is an absolute exemption and whether it be taken in personal or real property, the judgment debtor acquires, in and to the property so exempt, when selected and taken, an absolute ownership with full power of disposition. Freeman in his work on Executions, at section 218, says; “The power of the owner of exempt property, unless limited by statute, to sell or incumber it is undoubted. The right of exemption is a privilege, but not a restriction. In fact, the owner’s power to dispose of exempt property is more absolute than it is over other kinds of property. This is because of the freedom of exempt property from involuntary liens. Not being subject to execution, the owner may sell it, pledge it, or give it away, notwithstanding the existence of judgment or execution liens, and without reference to the rights of his general creditors.” And numerous authorities are cited by the author in support of this text. By section 5441, Revised Statutes, it is provided: “Husband and wife living together, a widower living with an unmarried daughter or minor son, every widow and every unmarried female, having in good faith the care, maintenance and custody of any minor child or children of a deceased relative, resident of Ohio, and not the owner of a homestead, may, in lieu thereof, hold exempt from levy and sale, real or personal property to be selected by such person, his agent or attorney, at any time before sale, not exceeding five hundred ($500) dollars in value, in addition to the amount of chattel property otherwise by law exempted.” * * * The real property ex-'erupt by this section is placed in tbe same category ■with, and is exempt in the same right and for the same purpose as the personal property." In view therefore of the provisions of this section, to give to the language of section 5378 the force and effect •claimed for it by counsel for the plaintiff in error, would, we think, be to impute to the legislature a manifest absurdity, for it would be idle to declare ■that a debtor who is the head of a family and not the owner of a homestead, shall have an exemption of five hundred dollars in value in lieu thereof in •either real or personal property, with which, as this •court has said, “to secure the comforts of a home,” and at the same time deny to him the right to so use or apply it. A construction that would produce such result is at variance with our ideas of justice, and certainly would be inconsistent with the humane policy and purpose of our exemption laws. It appears from the agreed statement of facts in this case, that at the time of the levy or attempted levy by the sheriff, on the property in controversy that Clyde Blose, the judgment debtor, was a resident of Ohio and the head of a family, but was neither the owner of a homestead nor of personal and real property exceeding three hundred dollars in value, and that he selected as his exemption in lieu of a homestead, this specific property. Having so selected it, he had the right to sell and convey the same to-Hirons, and such sale and conveyance operated to invest Hirons with the title to the property, free from any claim or lien thereon of the plaintiff in error. Affirmed.

Spear, C. J., Davis, Shauck and Price, JJ., concur.

Summers, J., not sitting.  