James v. James

• Court: Ohio Court of Appeals
• Writing for the Court: GUERNSEY, J.
• Citation: James v. James, 69 Ohio App. 485, 44 N.E.2d 368 (Ohio App. 1942)
• Decision Date: 27 April 1942
• Parties: JAMES v. JAMES et al.

44 N.E.2d 368

69 Ohio App. 485

JAMES v. JAMES et al.

Court of Appeals of Ohio, Third District, Hardin.

April 27, 1942

Syllabus by the Court.

1. The provisions contained in Title 38, Sections 454a and 618 U.S.Code, exempting from levy, execution and seizure, the proceeds of veterans' adjusted service compensation and disability compensation, do not extend to realty purchased by a veteran with the proceeds of such compensation.

2. The question of exemption of property from execution is res judicata in an action to foreclose a lien on real property where there has been a prior adjudication in a divorce action between the same parties settling property rights between them and creating the lien in question.

Fred Markley, of Kenton, for appellant.

E B. Wetherill and C. W. Schwemer, both the Kenton, for appellee.

GUERNSEY Judge.

This is an appeal upon questions of law from a judgment of the Court of Common Pleas of Hardin county, Ohio.

The plaintiff, Pearle Cleo James, filed her petition in the Court of Common Pleas of Hardin county, Ohio, against the defendant, Harry, James, and others, alleging that on September 2, 1941, she recovered a judgment in the Court of Common Pleas of Hardin county, Ohio, in case No. 23576 granting her a divorce from the defendant; that an order was made by the court setting off the real estate described in the petition to the defendant, Harry James; that judgment was rendered by the court in plaintiff's favor in the sum of $275 payable as alimony and property settlement; and that the payment thereof was made a lien upon the real estate jointly owned by the plaintiff and defendant prior to the judgment of September 2, 1941.

In her petition plaintiff further alleged that this judgment remains unsatisfied and in full force and effect, and that the several other defendants named in the petition have or claim to have liens on the real estate.

The prayer of the petition is that the defendants, other than Harry James, be required to answer and set forth their respective claims upon such real estate or be forever barred; that the real estate be sold upon execution to satisfy plaintiff's lien thereon; and that the proceeds arising from such sale be applied to the payment of the various liens on the real estate in the order of their priority, and for such other and further relief as equity in its course may require.

To this petition the defendant, Harry James, filed his amended answer in which he alleged that he served as a soldier in the World War and was wounded in the service and as a result thereof is now and has been for a number of years disabled and totally unable to pursue or follow any gainful occupation; that he received adjusted service compensation (bonus) from the United States Government for his services as a soldier; and that for a number of years past he has received disability compensation from the United States Government on account of his disabilities.

He further alleged that he is a widower paying alimony for the support of minor children and that the real estate described in plaintiff's petition herein consists of house and lot and is his homestead and residence.

He further alleged that the proceeds of his adjusted service certificate were delivered by him to Pearle Cleo James, his wife, for the use and benefit of this answering defendant; that the premises described in plaintiff's petition were purchased by Pearle Cleo James from Randall Clark and Vera Clark for the sum of $1,250; that out of this fund (adjusted service compensation money) Pearle Cleo James paid amounts aggregating the sum of $370.93 on the real estate; and that amounts aggregating $580 were paid on the real estate from the disability compensation allowance aforesaid of the defendant, Harry James.

The defendant in his amended answer further alleged that the amounts above mentioned, paid from his adjusted service compensation (bonus) and from his disability compensation allowance, as aforesaid, are preferred claims against the premises, after taxes and mortgages, and that the amounts are and should be declared to be exempt and not subject to levy, execution or seizure under any legal or equitable process.

The prayer of the amended answer is that the premises described in the petition be set off to him as his homestead and exempt from execution or other process, and in case that cannot be done that the sum of $500 in lieu thereof be set off to him as exempt out of the proceeds of any sale of the premises; that in addition thereto the amounts paid into the premises from his adjusted service compensation (bonus) and from his disability compensation allowance be set off to him as exempt out of the proceeds of any sale thereof; further that he be allowed and there be set off to him any and all other exemptions and allowances to which he may be entitled; and for such other and further relief to which he may be entitled.

To this amended answer the plaintiff filed a demurrer upon the ground that the amended answer does not set forth facts which entitle the defendant to the relief demanded.

This demurrer to the amended answer was sustained, and defendant, Harry James, not desiring to plead further, judgment was entered as prayed for by plaintiff in her petition and as prayed for in the pleadings of the defendants other than the defendant, Harry James, he not having filed any pleadings other than his answer and amended answer to the petition of Pearle Cleo James.

It is from this judgment that this appeal is taken.

It is contended by the defendant, Harry James, that this judgment is contrary to law.

He does not argue in his brief that the court erred in holding that he was not entitled to homestead exemption or exemption in lieu of homestead, upon the facts with reference to his claim thereto, pleaded in his amended answer, and an inspection of the statutes with reference to homestead exemptions and exemptions in lieu of homestead discloses that the allegations of the petition with reference to his status do not bring him within the class of those entitled to homestead exemptions or in the class of those entitled to exemption in lieu of homestead, so the court did not err in sustaining the demurrer of the plaintiff to the amended answer, so far as an allowance for homestead or allowance in lieu of homestead is concerned.

We will next consider whether the court erred in sustaining the demurrer to the amended answer, insofar as the allegations thereof relate to the amounts paid by him out of his bonus compensation and disability money on the purchase price of the real estate described in the petition and his claim to exemption and priority by reason thereof.

Whatever exemption the defendant Harry James may be entitled to on account of payments made on the real estate described in the petition, out of disability allowance paid him by the government, is derived from and based upon the provisions of 38 U.S.C.A. § 454a, reading as follows: 'Payments of benefits due or to become due shall not be assignable, and such payments made to, or on account of, a beneficiary under any of the laws relating to veterans shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever either before or after receipt by the beneficiary. Such provisions shall not attach to claims of the United States arising under such laws nor shall the exemption herein contained as to taxation extend to any property purchased in part or wholly out of such...