Aikin Loan Co. v. Mustaine

Section 11730, General Code, reads as follows:

"Husband and wife living together, a widow or a widower living with an unmarried daughter or unmarried minor son, may hold exempt from sale on judgment or order, a family homestead not exceeding one thousand dollars in value. The husband, or in case of his failure or refusal, the wife may make the demand therefor; but neither can be allowed such demand, if the other has a homestead. In case of assignment, for the benefit of creditors, upon filing the written consent of husband and wife to the sale of a homestead property exempt by law, such homestead may be sold subject to the dower and homestead right herein provided."

In its relation to the instant case, the section contains neither exception, limitation nor qualification and hence the homestead right is clearly absolute otherwise than in respect of the mortgage indebtedness as mentioned in Section 11729, General Code, which is partially quoted in the majority opinion.

The right to the homestead exemption existing in the case at bar is to be effectuated in the manner prescribed by Section 11734, General Code, which we here set forth:

"On application of the debtor, his wife, agent, or attorney, 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 their homestead, the officer executing a writ of execution founded on a judgment or order, shall 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. Such assignment of homestead shall be returned by the officer with the writ, and be copied by the clerk in the execution docket. If no complaint be made by either party, further proceedings shall not be had against the homestead. Upon complaint of either party, and good cause shown, the court out of which the writ issued may order a re-appraisement and re-assignment of the homestead, but the remainder of the debtor's lands and tenements, if any there be, shall be liable to sale on execution. If no application is made during the life of the debtor it may be made by his widow at any time before a sale."

In this section there is neither exception, limitation nor qualification relative to the kind of a homestead, except that it shall not exceed one thousand dollars in value. Therefore, the homestead need not be free from mortgage or other lien precluding the homestead allowance.

It is common knowledge that the construction of a very large proportion of family homes is and has always been financed by mortgages, and that very many family homes carry mortgages for other purposes than their construction, and also that they are subject to the other liens mentioned in Section 11729, General Code.

Sections 11729, 11730, 11734 and 11737, General Code, are inpari materia — indeed they were originally enacted together — and hence they must be so construed as to accomplish their basic purpose, namely, to assure to those entitled, occupancy of the family homestead.

The rules for interpretation of statutes such as these are found in 37 Ohio Jurisprudence, 594 et seq., Section 331 et seq., particularly pages 620, 622, 623, 672, 673, 674.

The case of Bernsee v. Hamilton, supra, being in full harmony with those rules, is correct and should be followed.

The assertion in the majority opinion that the court rendering the decision in that case wrote into Section 11737, General Code, the words "that such sale must be a sale made upon a mortgage which precludes the allowance of a homestead," is well answered with the statement that the effect of the decision of the majority in the instant case is to write into Sections 11730 and 11734, General Code, the words "provided such homestead be not subject to a mortgage."

The only issue in the case at bar is one of extreme simplicity, namely, shall the homestead right so clearly and unqualifiedly conferred by Section 11730, General Code, be taken away because of collision with words in Section 11737, General Code, providing a remedy (the sale and distribution of proceeds) available to one having a claim precluding allowance of the homestead exemption?

The rules hereinabove referred to imperatively require that conflicting provisions be so reconciled if at all possible, that each may stand for its intended purpose, and do not justify the extinction of a clear and unquestionable right by provision of a remedial right of intentional restricted application though it be in general terms, "for the letter killeth, but the spirit giveth light."