where they became so by statute, provisions were made, in case of the death of the judgment debtor, for proceeding directly against the heirs to subject such lands to the payment of the judgment;" and in Lawrence v. Belger, that "the origin of judgment liens is found in the English statutes of Westminster; the second, which authorized judgment creditors to sue out a writ of elegit, the command of which was that the officer deliver to the plaintiff a moiety of all the lands and tenements, whereof the debtor at the time of obtaining the judgment was seized, or at any time thereafter might be seized (vide 15 Elizabeth).

Under section five thousand three hundred and seventyfour, Revised Statutes, the "lands and tenements, including vested interests therein, and permanent leasehold estates renewable forever, and goods and chattels, not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution and sold as hereinafter provided;" and "such lands and tenements [that is, such as are not exempt], within the county where the judgment is rendered shall be bound for the satisfaction thereof" (Section 5375).

The Revised Statutes, from sections five thousand four hundred and twenty-six to five thousand four hundred and thirtyone, inclusive, provide what personal property shall be absolutely exempt. Section five thousand four hundred and forty-one provides that "any resident of this state, who is the head of a family, and not the owner of a homestead, may hold exempt from levy or sale, real or 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 the amount of chattel property otherwise exempt by law." And section five thousand four hundred and forty provides for the allowance of five hundred dollars in lieu of a homestead, where, by reason of paramount liens against the real estate one can not be assigned.

That the property thus exempt from execution and sale, whether realty or personalty, as well as the exemption allowed in lieu of a homestead, can be disposed of by the debtor free from all judgment liens, will be questioned by none, I apprehend. It is not simply the use of the property that is saved to the owner, but the absolute ownership thereof, to be re

tained or disposed of by him, free from all judgment liens whatever. That five hundred dollars in money may be selected is well settled (Chilcote v. Conley, 36 Ohio St. 545); and no one would be so foolhardy as to contend that this sum of money may be used as the owner sees fit. And what is the difference between an exemption in money or in land? Does not the principle that governs and protects the one, govern and protect the other? Why should the homestead be put on a different footing from the exemption allowed in lieu thereof? Under section five thousand three hundred and seventy-four the homestead is "lands and tenements," exempt from execution, and therefore is not "subject to the payment of debts," and under section five thousand three hundred and seventyfive is not "bound" for the satisfaction of any debt against the owner.

The homestead having been set off and assigned, stands exempt from execution and is not "bound" for the payment of any judgment. No lien can arise or exist, by operation of law, against the homestead for the payment of any judgment against the owner. There can be no judgment lien with no right to enforce it. A lien without the right to make it effective, without the right to enforce it, is an absurdity. There can be such thing as a lien lying in abeyance, dormant, slumbering, waiting for some event to happen to give it life or validity, so that it may be enforced. A lien must have life. The law recognizes no suspension of it. A court of chancery may sometimes temporarily enjoin its enforcement, for the purpose of determining rights. And where the right to enforce does not exist, there can be no lien (Freeman on Execution, sec. 249).

Hence, where the homestead as against judgment liens being unincumbered, the owner has the right to sell, and when sold the purchaser takes the title free from all judgment liens. By selling the homestead, the owner does not commit a fraud on the rights of his creditors. He sells nothing the creditor can touch, nothing that he can subject to the payment of his claim. It has been held by our supreme court, "that a release of dower in a deed executed by husband and wife, without consideration, to defraud creditors, will not estop her to claim dower against the grantee, or any purchaser from him

without notice. No fraud can be imputed to her because of such, release, for the reason that she releases nothing that could be taken by her husband's creditors (Woodman v. Paige, 5 Ohio St. 71; Sears v. Shanks, 14 Id. 228; Tracy v. Cover, 28 Id. 61). Rorer, in his work on Judicial Sales, section five hundred and fifty-six, says: "Though judgments at law are ordinarily a lien on the lands of judgment debt, yet they are not so as to the lands occupied as a homestead; and if the homestead be abandoned by sale, conveyance and delivery of possession by the debtor, whilst a judgment exists against him, the lien thereof does not attach to the premises, but the grantee takes a clean title to the same as far as regards the judgment, and an execution sale thereof under the judgment is void."

Judge Dillon, one of the ablest judges that ever sat on the Federal Bench, in an article on the Homestead Exemption, written in 1861 (1 American Law Register N. S. 715), said: "The homestead being exempt, and placed beyond the reach of involuntary judicial sale, it is difficult to see, if the statute is silent on the subject, on what principie a judgment can be said to be a lien upon it. Such construction of the Homestead Acts is justly open to the criticism of making a 'homestead of the debtor his prison. *** It obstructs or defeats the free exercise of the right of alienation belonging to both the husband and wife. That a judgment is not a lien, unless the statute expressly so declares, has been determined in Illinois, in a very recent and well considered case (Green v. Marks, 25 Ill. 221). It was accordingly held, under statutes of New York and Wisconsin, that the owner of a homestead might sell or mortgage it, and the grantee or mortgagee take it free from lien of a judgment against the grantor."

The doctrine here laid down has been followed by the courts in Illinois (Fishback v. Lam, 36 Ill. 437; Bliss v. Clark, 33 Id. 596; 44 Id. 175; Wiggins v. Chance, 54 Id. 175; Hamworth v. Travis, 67 Id. 301); Iowa (Lamb v. Shay, 14 Ia. 567; Commins v. Lory, 16 Id. 41); Kansas (Morris v. Ward, 5 Kan. 239; Geapon v. Stephenson, 17 Id. 617); Texas (Black v. Epperson, 40 Tex. 162-187); California (Houghton v. Lee, 50 Cal. 103); North Carolina (Martin v. Meredith, 71 N. C. 215); Wisconsin (Johnson v. Harrison, 41 Wis. 381; Goodwell v. Blumer, Ib. 456), and Misscuri.

The court say in Goodwell v. Blumer, supra, that "under the laws of this state, a sale and conveyance of his homestead by a judgment debtor, does not render it liable to sale on execution." And in Lamb v. Shay, supra, the court say: "The lien of a judgment upon lands in this state being conferred by statute, it can only have such force as is given thereby, and it can only attach and become effective in the manner, at the time, and upon the conditions and limitations imposed by the statute itself. A lien without the power to enforce it, carries with it no advantages to the owner thereof. It can not be enforced as against the homestead, because that is exempt from judicial sale. It is inoperative, and can not be otherwise as long as the homestead is used as a home. Constructing the two sections together, having been passed at the same time by the same legislature, we think that it could not have been designed that the lien should ever attach upon property that was declared exempt from judicial sale. This exemption exists only so long as the homestead is occupied and used as a home. The moment is ceases to be used as such, the lien attaches, the same as it attaches against property acquired by the judgment debtor after the judgment is rendered, and the priority of liens can be determined in the same manner. If, therefore, this lien does not attach so as to be effective against the owner, how can it affect the rights of a purchaser of the homestead property? The right of exemption continued until the sale and delivery of the deed to the vendee, and the lien can not attach until after sale and delivery, nor until after it ceases to be occupied by the owner. Prior to this the vendee's rights become absolute."

In the case of Morris v. Ward, supra, the court say: "It is claimed that the judgment lien remains simply dormant during the time that the land is occupied as a homestead, and that as soon as it is transferred and ceases to be occupied as a homestead, the lien attaches and becomes effective. Now, suppose the husband, in whom the title is vested, dies. The title to the property is immediately, by law, transferred from him to his widow and children, and he ceases to occupy the property as a homestead, will the judgment lien then attach and take the homestead away from the widow and children? And suppose the whole family die, except those children born

after the judgment was rendered, can those children hold the property as a homestead? If they can, then where is the certainty of a judgment lien ever attaching to a homestead and becoming effective? And as long as the lien is not ef fective it is practically no lien at all. In the case at bar, several days before the land was abandoned as a homestead, and, therefore, several before the judgment lien could have any practical existence, the land was conveyed to Morris. Then when did this lien attach and become effective? Upon the whole we decide the question in this case as follows: 1. A mortgage of the homestead, executed by the husband alone, is void. 2. A judgment rendered against the husband alone is not a lien on the homestead. 3. Neither is such a mortgage nor such a judgment any incumbrance on land owned by the husband and occupied by himself and family as a homestead. 4. Such land may be sold and conveyed by the husband and wife jointly, and the purchaser will take the title free and clear from all incumbrances, notwithstanding said mortgage and judgment. 5 After said sale and conveyance, and after the land has been abandoned as a homestead, if an execution is issued on said judgment, and the land be sold under said execution, the sale is void. 6. After said sale and conveyance, and abandonment, if a decree of foreclosure be entered on said mortgage against the husband, in a suit in which the wife is not a party, the decree is void so far as it affects and is no evidence of anything as against her."

"It is not for the interest of society that families should forever remain stationary, and their homesteads be perpetual prisons; on the contrary it is for the interests of society, as well as of families, that families should be free to go and reside wherever they can do the best. But, if the law is as is claimed by the defendant below, then whenever a judgment is rendered against the husband, the family must forever remain where they are at the time, such judgment is rendered, or lose not only the homestead, but also the means of acquiring another. The innocent family and society must suffer through the improvidence, perhaps the fraud or the misfortunes of the husband."

The only reported case we have in Ohio, is that of Stewart v. Wooley, (2 Western Law Monthly 470), decided by Judge