Bartram v. McCracken ( 1884 )

By the Court.

On October 19, 1878, M., as sheriff, duly levied an execution against B. upon certain chattels. B. was then the head of a family. He owned but one parcel of land and then resided thereon. This was incumbered to a sum greater than its value by mortgages duly made by B. and wife. The mortgage debts were overdue and unpaid, and the holders could, at pleasure, begin actions to foreclose. Stating these facts to M., B. demanded a set-off in lieu of a homestead. This M. refused, and sold the chattels under his writ.

Ueld: The allowance demanded could only be made to “ any resident of Ohio being the head of a family and not the owner of a homestead.” (78 Ohio Laws, p. 694, § 68.) At the time of his demand, although the homestead was incumbered to more than its value, B. was still its only owner. We think the legislature did not intend to impose upon the sheriff the duty of ascertaining the existence and validity of, and the amount due upon, incumbrances upon the realty of the execution debtor.

Judgment affirmed.