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Ottawa Circuit Court.

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APPROPRIATION OF PROPERTY.

(Ottawa Circuit Court, July 1, 1896.]

Scribner, Haynes and King, JJ. THE INCORPORATED VILLAGE OF PUT-IN-BAY v. WM. STIMMEL

ET AL. NOT NECESSARY TO NOTIFY THE MORTGAGEES OF THE PROPOSED APPLICATION

When a municipal corporation seeks to appropriate private property under sec.

tion 2235 Revised Statutes, as amended, 191 O. L., 127), the mortgagees of such property are not necessary parties to be notified of the resolution before the

passage of the same. HAYNES, J. (orally).

As far as the motion for leave to file a petition in error in this case is concerned, our decision turns upon the definition we give a single word. In section 2235, Revised Statutes, it provides in the amended sec. tion, that

“When it is deemed necessary by any municipal corporation to appropriate private property as hereinbefore provided, the council, board of legislation or other legislative body, as the case may be, shall order by a yea and nay vote, of which die record shall be made and kept, a resolution prepared deciaring such intent, defining therein the purpose of the appropriation, and setting forth a pertinent description of the property designed to be appropriated; and immediately upon the introduction of such a resolution, and before the passage of the same, the mayor on the corporation shall cause written notice of such resolution to be given to the owner or owners of every piece of property sought to be appropriated, or to his, her or their authorized agent."

The question is—who is the owner? We have no doubt ourselves but that it means the person who is the legal owner of the property

Before Judge KING was on the bench, as a member of this court, we had to go through very long, full and hard-fought cases in the city of Toledo, where the question of ownership was fully discussed, but nobody at that time suggested that a mortgagee was an owner or was to be notified. In tliat case the question arose under section 2502, Revised Statutes, which provides that:

"No such grant, as mentioned in said preceding section, shall be made, except to the corporation, individual or individuals, that will agree to carry passengers upon such proposed railroad at the lowest rates of tare, and shall have previously obtained the written consent of a majority of the property holders upon each street or part thereof, on the line of the proposed street railroad, represented by the feet front of the property abutting on the several streets along which the road is proposed to be constructed : " * * *

It seems to us to be very strange that in the present case that all lienholders should be notified or required to give their consent to the resolution or the appropriation or should be corsulted in regard to it. The village council is dealing with the owners of the property, and it is sufficient if these owners receive notice. We are of the opinion that the court therefore erred in the holding that the mortgagees were necessary parties to be notified of the resolution before the passage of the same.

Weber v. Beier et al.

The resolution had been passed and proceedings had been commenced and the mortgagees had been brought into court and became parties to the suit and proceeded along with the other defendants until arriving at a certain stage of the case, when they filed their motion to dismiss the case because they did not receive notice before its passage that the resolution was pending before the common council. We think they are too late to ask for a dismissal. If they had any rights they should have been presented as soon as they were brought into court. We think the court erred in dismissing the action; we therefore allow the filing of the petition in error and if counsel has no desire to be heard on behalf of the mortgagees we will proceed to render a final judgment.

(Counsel for mortgagees stated that they did not desire to be heard further and the court proceeded as follows) :

Judgment may be entered reversing the action of the court of common pleas and remanding the cause for further proceedings.

We see no reason why it should be required that Mr. Stimmel should have notice in the precise form mentioned in the statute, providing he had notice of the fact that the resolution was pending before the council. There is no mystery about this matter. The provision of the statute is that he shall have notice, and if he has notice, that is sufficient. The Harbeck case pointed out that a certain notice should be published; that notice was not published. In this proceeding Stimmel had actual notice though it was not given in the precise form of the statute. We think the noiice was sufficient.

L. W. Hull, E. G. Lon and W. H. A. Read for Plaintiff in Error,
Scott Stahl and Paul Jones for Defendants in Error.

HUSBAND AND WIFE_HOMESTEAD.

Lucas Circuit Court, June 19, 1897.]

King, Haynes and Parker., JJ. ALEXANDER WEBER V. FREDERICK BEIER ET AL. HUSBAND ENTITLED TO A HOMESTEAD, THOUGH Nor LJVING WITH HIS WIFE.

Where a husband is left with his minor children living with him in the home

stead, his wife having left him, he is entitled to a homestead exemption the

same as if he were living with his wife and occupying the homestead. HAYNES, J.

In this case, Weber filed his petition in the common pleas against Frederick Beier and others, in which he set forth that he had recovered a judgment against Frederick Beier for the sum of $95, and that by due process of law it had become a lien upon certain premises in the city of Toledo which were occupied as a homestead by said Beier. Other creditors and mortgagees were made parties, and one of these set up a mortgage under which by proceedings in this case the property itself was sold; and, the proceeds being in court, the defendant-Beier-makes application as against the judgment of Alexander Weber (the mortgage, of course, having been executed by him) to have a homestead exemption of $500 allowed him out of the moneys in the hands of the court, in lieu of his homestead. That application was heard in the court of common pleas and was decided against him, and from that order and decision he

Lucas Circuit Court.

took an appeal to this court. The matter came on for hearing here and has been heard upon evidence produced by the parties. It appears from the testimony that Frederick Beier was a widower, having minor chiidren living with him ; that he intermarried with a lady whose married name is Eliza A. Beier. She lived with him some three or four months, when she left him, as is alleged by reason of his transgressions, and thereupon she filed a petition for alimony, which having been heard in the common pleas, that court allowed her a certain amount for alimony, and that is one of the claims which is set up in the original pleadings in the court of common pleas. The contention here is, between Alexander Weber and Frederick A. Beier. It appears that since the filing of the petition Mrs. Beier has not rejoined her husband, but still lives separate and apart from him with her minor children, while he remains with his minor children, and the question raised here is, whether he, under these circumstances, as against Weber, is entitled to an exemption of $500 in lieu of a homestead?

It is contended on the part of Weber that section 5135, Revised Statutes, is to govern the rights of the parties. It reads:

“Section 5435. 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; etc.

And it is said that inasmuch as Mr. Beier does not come within either of the categories mentioned in that section, therefore he is not entitled to a homestead, nor to an exemption in lieu of a homestead.

Section 5440 provides: "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, and a sale of such homestead is had, then, after the payment, out of the proceeds of such sale, of the liens so precluding such allowance, the balance, not exceeding five hundred dollars, shall be awarded to the head of the family, or the wife, as the case may be, in lieu of such homestead, upon his or her application, in person, or by agent or attorney."

It is contended on the part of Frederick Beier that he comes within the definition of a "head of a family” and that he is entitled to the benefit of that section of the statute.

The questions that have been argued here and which arise under these statutes are somewhat perplexing. This arises from the fact that the statutes have been amended at various times, and not always with the single view of having uniformity in regard to the language that is

A decision of the question will compel us to make an investigation of the statutes as they have stood heretofore and as they were enacted in the revision which was made under the authority of the legislature of the state, for the purpose of ascertaining what the present status of the law is upon this subject.

The act of March 23, 1850, provided, section 1, (48 O. L., 29), as follows:

“Be it enacted, 'etc.,' That from and after the fourth of July next the family homestead of each head of a family shall be exempt from sale on execution on any judgment or decree rendered on any cause of action accruing, after the taking effect of this act; provided that such home. stead shall not exceed five hundred dollars in value.”

Weber v. Beier et al.

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That was the general description--that he should be the "head of a .amily.” Evidently anticipating that there might be some questions raised from time to time, the legislature, by section 4, defined who some of the parties should be that might be included in the definition "head of a family," or who should be entitled to the benefit of the act, and that section provides :

"Section 4. Every widower, or widow, having an unmarried minor child or children, residing with him or her, as part of his or her family shall have the benefit of this act, in the same manner as married persons. And married persons, living together as husband and wife, shall be entitled to the exemption in this act provided, although they shall have no children."

So while it seemed to be assumed that "the head of a family would include a man who had a wife and children, it was provided that a widower or widow, having an unmarried child, or children, living with him or her, as a part of the family, should have the benefits of the act; and that a husband and wife, living together-evidently meaning if they lived together without children-should have the benefit of the act.

It will be observed that there was not included in that section of the statute a class of persons which is quite large in this state, viz.: persons who have been divorced and who may be living in the homestead with a family of children ; nor did it include the cases where the husband is living with his children and the wife had left him; nor did it include the cases where the wife is living in the family homestead with the children, the husband having left.

In setting out how the debtor should have the benefit of the act, the second section provided :

"Section 2. That the Sheriff, or other officer executing any writ of execution founded on any judgment or decree such as is mentioned in the first section of this act, on application of the debtor, or his wife, his agent or attorney, if such debtor have a family, and if the lands or tenements about to be levied on, or any part or parcel thereof shall be the homestead thereof, shall cause the inquest of appraisers, upon their oath, to set off such debtor by metes and bounds a homestead not exceeding five hundred dollars in value, and the assignment of the homestead so made shall be returned, "etc.

* *

So that the phrase there used, instead of "head of a family" is: "If such debtor have a family.” That law continued in force until the year 1869, when, by an act passed April 9, 1869, (66 O, L., 48), the first and second sections—which I have already read—were re-enacted, with the single change made—so far as I can discover, that the homestead might be of the value of one thousand dollars instead of five hundred dollars, as theretofore. And then was also enacted the section which is now 5440:

“Section 5440. 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, and a sale of such homestead is had, then, after the payment out of the proceeds of such sale, of the liens so precluding such allowance, the balance, not exceeding five hundred dollars, shall be awarded to the head of the family, or the wife, as the case may be, in lieu of such homestead, upon his or her application, in person or by agent or attorney."

Lucas Circuit Court.

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* *

The law continued in force as we find ic ii 66 O. L., 49, up to the time of the revision ; and we find the re ision in 75 0. L., I shall reud from pages 692 and 800. Section 137 provides.

"Section 137. The act of April 9, 1869, entitled 'an act to amend an act to exempt the homesteads of families from forced sale on execution to pay debts, passed March 23, 1850—shall be repealed.”

The effect of that was to repeal the first section of the homestead act which I have referred to, but not the second section, and that reads as follows:

"The officer executing any writ of execution founded ca a judgment or decree shall, on application of the debtor, his wife, agent, or attorney, at any time before sale, if such debtor have 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 :100 exceeding one thousand dollars in value;" etc.

* which follows substantially, I believe, the original homestead act of 1850, and is the same as section 5438, Revised Statutes.

Section 67 provided : "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, and a sale of such homestead is had, then, after the payment out of the proceeds of such sale, of the liens so precluding such allowance, the balance, not exceeding five hundred dollars, shall be awarded to the head of the family, or the wife, as the case may be, in lieu of such homestead, upon his or her application, in person, or by agent or attorney."

Reading the same as section 5440.

Now the question is: What is meant by the fact that section 1 of the original act has been repealed? You will see that it has been repealeu by the revision. The object and purpose of the revision and the rights and duties of the commissioners appointed to make the revision and he effect of their acts, arc set forth in the case of Allen v. Russell, 39 C. S., 336. In that case a levy had been made upon a certain lot and a widow had asked to have the property set off to her as a homestead, it not exceeding in value $1,000. The case says: "She was at the time and cver since has been a widow but was not at any time living with an unmorried daughter or unmarried minor son.” And the question ceme up whether she was entitled to have a homestead, and a discussion liad arisen over the change in the acts. Judge Okey says: "The act of 187,

68 O. L., 106), amendatory of the homestead act of 1850, in force when the judgment recited in the vendi ex was rendered, provided as follows: Every widower having an unmarried minor child or children residing with him as part of his family, and every widow shall have the benefit of this act.'

It will be seen that no question could arise as to the widow being entitled to the provisions of that act of 1871.

“This act was repealed by the act of 1873. * * The latter provision has been incorporated into the Revise? Statutes, and, properly. punctuated, is as follows:

"Husband and wife living together, a widow, or a widower livius with an unmarried daughter or unmarried minor son, inay hold exempt from sale, on judgment or decree, a family homestead not exceeding one thousand dollars,” in value etc.

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