
    Joseph Comer et al. v. Joseph B. H. Dodson et al.
    "Where one of the parties in a proceeding in partition, during the pendency of the case, assigned to several persons specified amounts of his share of the money to be realized from a contemplated sale of the land, and afterward a creditor of the saíne party obtained judgment against him and levied an execution on hi» undivided interest in the land, also at the same time proceeded by cross petition to subject such interest to the payment of the judgment, and the proceeding in partition resulted in a sale of the land: Held—
    1. The lien acquired by the judgment creditor on the interest of the debtor in the land, was divested by the sale in partition, and his equitable right to that portion of the proceeds of the sale belonging to the debtor, having accrued after a part thereof had been assigned by the debtor, is subordinate to the rights of the assignees, and, in the distribution of the fund, the amount assigned to them must be first paid.
    2. The debtor had the same right to the statutory exemption in lieu of a homestead, as against the creditor, that he would have if the creditor had levied an execution on the money in dispute; and the court having control of the fund, on the proper application of the debtor, may, in the distribution of the fund, refuse to apply the amount of such exemption to the satisfaction of the nidg-ment.
    Motion for leave to file a petition in error to the Superior Court of Montgomery county.
    On the 17th day of June, 1871, John C. Dodson and others filed, in the Superior Court of Montgomery county, a petition for the partition of certain land in that county, making Joseph B. II. Dodson,Eliza J. Newman, and others, ¡defendants. The said Joseph B. II. Dodson and Eliza J.' Newman each owned, in fee simple, one undivided sixth part of the said land. The court having obtained jurisdiction of the parties, on the 21st day of December, 1871, made an order for partition. The writ was issued January 24,1872, and was returned on the 27th of the same month, ¡showing that partition could not be made, and that the commissioners had appraised the land according to the statute. This report was confirmed on February 3, 1872, and a sale ¡ordered. Afterward, at the same term, the order of confirmation and sale and the report of the commissioners were vacated, by reason of a mistake made by the commissioners, and a new writ of partition issued. This was returned, showing a new appraisement, and an order of •confirmation and sale was made on March 2, 1872. Successive writs of sale were issued, and the land was twice offered for sale, and returned not sold for want of bidders. At June term, 1872, the appraisement was set aside, and 
      & third order for partition made. Such proceedings were afterward had that the land was sold for $4,865, and the sale confirmed at December term, 1872.
    Pending this proceeding, on April 2, 1872, said Joseph B. H. Dodson, in writing, assigned and transferred to the defendant, Eliza J. Newman, $290 of the money coming to him from the proceeds of the sale to be made in said case, to be paid out of the third installment thereof, the writing particularly describing both the premises and the proceeding.
    On the 18th day of April, 1872, the said Dodson, by a •similar writing, assigned and'transferred to one Lewis R. Pfouts, $300 of the money coming to him from the same source, to be paid out of the first installment thereof.
    On the 11th of April, 1872, Comer, Brown & Darst recovered a judgment against said Dodson, before a justice ■of the peace, for $299.45 and costs, and on April 27, 1872, ■filed a transcript thereof, in the office of the clerk of Common Pleas of said county, and on the same day, the proper entries having first been made on the execution docket, an -execution was duly issued on said judgment, and duly levied upon the interest, of the said Dodson in the premises .aforesaid.
    Afterward, said judgment remaining in force and unpaid, the said Pfouts, and Comer, Brown & Darst were admitted as parties defendant in said partition suit, and they, and also the said Eliza J. Newman, severally filed answers and cross-petitions, setting out their respective claims, and asking payment out of the moneys coming to said Dodsou in said proceeding.
    Dodson being the head of a family, and resident in the said county, and not the owner of a homestead, also filed, in January, 1873, an answer and cross-petition setting out said facts, and asking that the moneys coming from his share of said premises, except so much as should go to Eliza Newman and Pfouts, should be paid to him in lieu of .a homestead.
    At February term, 1878rthe court having found said answers ancl cross-petitions true, made an order of distribution, directing payment to Pf'outs and Eliza J. Newman, according to the tenor of the assignments to them, and giving the balance of said Dodson’s share of said proceeds of sale, which did not exceed $300, to said Dodson.
    Comer, Brown & Darst excepted to said order, and made a motion for a new trial, which was overruled, and they, having also excepted to that decision, now move for leave to file a petition in error, to reverse said judgment of distribution.
    
      Young § Gottschall, for the motion :
    We do not dispute that an order of sale, made in a proceeding for partition, is an equitable conversion of the real' estate described in the petition, into money or personalty.
    But we do deny that an order of sale in such proceeding, which has been subsequently, .in the same proceeding, vacated’ and set aside, amounts to such conversion.
    Such an order has no force whatever, and is as if it never existed, and no rights can be acquired under it.
    The preceding orders having been vacated, a new order of partition was'made at June term, 1872. That order could only have been made upon the ground that the property remained subject to division as real estate; and, as-such, before sale could be ordered, any of the tenants in common had the right to take it under the statute at theappraisement. S. & C. 897, etc.; S. & S. 505.
    Even if Eliza Newman and Pf'outs had obtained and held-unrecorded mortgages ón Dodson’s interest in the land at the dates of the respective assignments to them, Comer,, Brown & Darst, by their judgment and levy, would hold a priority over said mortgages. White v. Denman, 16 Ohio, 59; Holliday v. Franklin Bank, Ib. 533; Fosdick v. Barr, 3 Ohio St. 471; 4 Ohio St. 45; 5 Ohio St. 78; 8 Ohio St. 509.
    Can one create an incumbrance upon his land, which shall have priority over a subsequent judgment and levy, by a simple agreement to pay so much out of the proceeds of a possi~ ble future sale, when he can not do so by unrecorded mortgage drawn in all respects in accordance with the formalities provided by the statute ?
    In filing their answer and cross-petition in this case,. Comer, Brown & Darst pursued the proper course. Cradlebaugh & Morris v. Pritchett, 8 Ohio St. 646.
    (The court will observe that this case differs from ours, in the fact that the judgment was obtained after the order of sale, whereas in ours, both judgment and levy were before f
    
    Now as to Dodson’s homestead claim. It is riot claimed that the property sold was his “ family homestead,” as such “head of a family.” He therefore had no right to a homestead by metes and bounds in the property itself. S. & C. 1145; 66 Ohio L. 49. But if at all, only after the sale, in the proceeds as personalty. S. & C. 1146; 66 Ohio L. 50. But Comer, Brown & Darst’s judgment was a lieu on the realty before sold; and it does not appear that Dodson made any claim until nearly a month after the sale by the filing of his answer. 3 Ohio St. 270; 14 Ohio, 298.
    
      Haynes, Howard § Howard, contra, for Pfouts:
    It may well be claimed that the order of the court to sell the land converted it into money; but whether it was realty or personalty, we consider a question of no consequence. If personalty, the transfer in writing, without seal or acknowledgment, passed the legal title. If realty, the writing passed an equitable proportional interest in it, and the lien of the judgment is subject to that equitable interest.
    2. By the decree all control over the land passed from Dodson; he could not prevent the execution of the decree. His only right was in the proceeds of the sale to be made. Neither his assignee nor his judgment creditor could acquire any greater right than he himself had. Comer, Brown & Darst acquired an interest in the proceeds subject to the prior rights. See Cradlebaugh & Morris v. Pritchett, 8 Ohio St. 646.
   Day, J.

The controversy in the case relates to the priorities of the parties in the distribution to be made of one share of a fund arising from, the sale of land in a proceeding for partition.

The claims of two of the parties are based on assignments or purchases of portions of the share from the owner thereof, and the claim of the other parties is founded on a judgment lien and levy of execution on the land from which the share of the fund in dispute was derived; also, ■on a cross-petition to subject the debtor’s interest in such ■share to the payment of the judgment.

But' the assignments and all the liens were obtained during the pendency of the suit in partition, and not until .after an order for the sale of the land had been made in the case. It is true the land was, in fact, sold, as claimed in argument, pursuant to an order subsequently made; but 'the former order was not vacated, and the latter order was but the result of a re-appraisement, rendered necessary for "the reason that the land could not be sold at the price required under the former appraisement. But it would probably make no difference whether the liens claimed were lixed before or after the order of sale was entered where the ease results in a sale of the land, if the liens were obtained pendente lite; for, in either case, the sale would be an incident to and result from the case in partition, and the purchaser would take a title clear of incumbrance by either the assignments or judgment lien. Cradlebaugh v. Pritchett, 8 Ohio St. 646. Therefore, whatever rights were procured by the assignments and judgment, they were all subordinate to the proceedings in partition, and a sale of the land could neither be prevented, delayed, nor affected thereby.

The assignments only purported to convey specified sums •of the proceeds of the contemplated sale, therefore the purchasers, at most, held merely an equity in the land to the extent of their respective claims; and, since the judgment .and execution could not hold the undivided interest of the debtor in the premises as land, it follows that the judgment creditor acquired thereby merely the right to have the proceeds of the sale belonging to the debtor appropriated to the payment of the judgment. Nor could this be effected by the judgment lien or levy of execution alone, for they had been lost by the sale under the paramount proceedings in partition. The avails of the sale could not be secured for the payment of the judgment but by the proper application to the court for that purpose, and this might be attained by the cross-petition.

It results that the available interests of all the parties-were in one share of the money to be aparted to one of the-parties in the proceedings in partition. From this party all the rights of the others were derived, and each could acquire only the interest existing iu him at the time they obtained their respective rights. The rights of the purchasers-of portions of the money in dispute are, therefore, superior-in.law to those of the judgment creditors which were acquired subsequent to the assignments.

Moreover, since the creditors, by their judgment and levy, did not hold the debtor’s laud, and acquired only the right in equity to have the money appropriated to the-satisfaction of their judgment, and as they have no better eqnity than the assignees, that of the latter being prior in .time must prevail to the extent of their claims.

It appears that a small amount of the money in controversy remained after satisfying the claims of the assignees,, and that this was claimed by the debtor in lieu of the statutory homestead exemption.

Section 8 of the act of April 9, 1869, in relation to homestead exemptions (66 O. L. 50) provides: “ That it shall be lawful for any resident of Ohio, being the head of a family and not the owner of a homestead, to hold exempt from levy and sale, as aforesaid, personal property, to be selected by such person, his agent or attorney, at any time before sale, not exceeding five hundred dollars in value, in addition to 1-he amount of chattel property now by law exempted.”

The exemption here provided for, it will be seen, applies only to personal property. The money to be disposed of by the court was that kind of property. As we have seen,, the creditors acquired no right to hold the land, nor any -right other than that which might be asserted against the money. They had no claim, then, to the money, as against the debtor, superior to that which might be acquired by a direct levy thereon. In that event, it is very clear the debtor might avail himself of the statutory exemption.

In the case before ns, instead of being held by levy, the money was in the control of the court, to be disposed of in .accordance with, the rights of the parties. The right of the debtor to the exemption was no less strong and just because his money was being disposed of under the forms •of equity proceedings, than it would have been if passing from him in accordance with the modes provided by law. We are of opinion that this was a ease where equity might properly follow the law in preserving the rights of the ■debtor. It appears in his application to the court that he not only brought himself within the provisions of the •statute, but showed that tlie balance left after paying his assignees, together with all his other personal property, was less than the amount allowed by the statute to a debtor in lieu of a homestead.

On the whole record, we do not discover any error in the ■action of. the court below: the motion for'leave to file a petition in error must therefore be overruled.  