Morgridge v. Converse
| Decision Date | 04 August 1948 |
| Docket Number | 31055. |
| Citation | 81 N.E.2d 112,150 Ohio St. 239 |
| Parties | MORGRIDGE et al. v. CONVERSE et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
A homestead exemption set off to a debtor by metes and bounds under the provisions of Sections 11730 and 11736, General Code (Sections 5435 and 5439, Revised Statutes) is neither an assignable nor an inheritable estate, and the heirs of a deceased husband and wife, to whom such homestead was set off during their lifetime, have no legal title to the premises. Such homestead is a mere possessory right, personal to the debtor and his family and not a right running with the land. Schuler v. Miller, 45 Ohio St. 325, 13 N.E. 275; McComb v. Thompson, 42 Ohio St. 139; Genell v Hirons, 70 Ohio St. 309, 71 N.E. 709, and Gledhill v. Walker, 143 Ohio St. 381, 55 N.E.2d 647, approved and followed.)
Appeal from Court of Appeals, Madison County.
This case originated in the Court of Common Pleas of Madison county. The original plaintiff, Effie R. Morgridge, filed a petition seeking to evict the heirs of Henry B. Converse and Elizabeth B. Converse from possession of a five-acre tract of land located in Canaan township Madison county, Ohio. Effie R. Morgridge died during the pendency of this action and Emerson R. Morgridge and Paul W. Morgridge as her heirs were made parties; likewise, Eleanor D. Coverse, one of the defendants, died during the pendency of this action and her executrix was made a party.
The case was submitted upon an agreed statement of facts, which facts may be summarized as follows:
On March 25, 1902, Henry B. Converse was the owner in fee simple of 280 acres of land of which the five-acre tract involved herein was a part. On that date Converse filed a petition in voluntary bankruptcy in the federal District Court, alleging that he was willing to surrender all his property for the benefit of his creditors, except such as was exempt by law. He was thereafter adjudged a bankrupt and trustees were appointed for his estate in bankruptcy. On September 13, 1902, the trustees filed in the United States District Court their report that they had set aside to the bankrupt as his homestead the five-acre tract described in the petition. Thereafter the trustees filed their petition for an order and judgment directing them to sell the 280 acres belonging to the bankrupt's estate, reciting therein that they had set off out of the 280 acres the five-acre homestead, and on November 6, 1902, the bankruptcy court ordered the trustees to sell the real estate. A sale was thereafter completed and the trustees, in conformity with a decree of the bankruptcy court, executed to William Morgridge, the ancestor of the plaintiff, a deed of conveyance of the 280 acres, 'subject to the right of said Henry B. Converse to use and occupy as a homestead a portion thereof described as follows: * * * [Here follows description of the five acres].' This deed was duly recorded April 2, 1903.
The claims against the estate of Henry B. Converse amounted to $58,630.67. His land was sold for $16,831 and a total of 54% was paid upon his indebtedness. Converse and his wife, Elizabeth B. Converse, continued to live in the homestead until his death which occurred April 23, 1915, and Elizabeth B. Converse continued in the occupancy thereof until her death which occurred on August 31, 1934. After the death of Henry B. Converse the widow had her dower established in the 280-acre tract to which it was subject at the time of the sale in 1902.
The plaintiffs in this action are now the owners of all the interest in the land in controversy conveyed by the trustees in bankruptcy to William Morgridge. The defendants are the heirs of Henry B. Converse and Elizabeth B. Converse.
The amended answer of the defendants denies that the plaintiffs have any legal estate in the premises or are entitled to possession of the premises and alleges that the Court of Common Pleas of Madison county, in an action brought by Elizabeth B. Converse on May 22, 1915, against William Morgridge and Effie R. Morgridge, had entered a decree holding 'that under and by virtue of the sale in the bankruptcy proceedings in the U.S. District Court, Southern District, of Ohio, Eastern Division, cause number 775, and the deed made by authority of said proceedings, the said William Morgridge and Effie R. Morgridge acquired no title in remainder or otherwise to said five-acre homestead tract; and to the extent that the deed from Owen Harbage, et al., trustees, to William Morgridge, recorded in deed book, 67, pages 549-552, recorder's office, Madison county, Ohio, purports to convey said five-acre homestead or any interest therein, the said deed is null and and void, and conveys no title whatsoever to said five-acre tract.'
The amended answer further alleges that this decree has never been reversed or annulled and is a bar to this action.
As an alternate defense the defendants allege that 'under and by virtue of sale in the bankruptcy proceedings in the U.S. District Court, Southern District of Ohio, Eastern Division, cause number 775, and the deed made by authority of said proceedings, the said William Morgridge and Effie R. Morgridge and the substituted plaintiffs herein claiming under said William Morgridge and Effie R. Morgridge acquired no title in remainder or otherwise to the land described in plaintiffs' petition and that to the extent that the deed from Owen Harbage, et al., trustees, to William Morgridge recorded in deed book 67, pages 549-552, recorder's office, Madison county, Ohio, purports to convey the land described in plaintiffs' petition herein or any interest therein, the said deed is null and void and conveys no title whatsoever to said land described in plaintiffs' petition herein for the reason that said bankruptcy court, after setting aside the land described in plaintiffs' petition as a homestead to the bankrupt, Henry B. Converse, had no jurisdiction to sell the same.'
Issue was made by reply and upon trial, a jury being waived, the Court of Common Pleas Found 'that, at the time the petition herein was filed, and continuing to the time of her death, Effie R. Morgridge, who was the sole plaintiff, was the owner and entitled to the immediate possession of the real property described in the petition; that on October 13, 1945, said Effie R. Morgridge died intestate survived by Emerson R. Morgridge and Paul W. Morgridge her only heirs at law, who have been made parties hereto and this action revived in their names as plaintiffs; that since the death of said Effie R. Morgridge, said Emerson R. Morgridge and Paul W. Morgridge have been and still are the owners of, and have been and still are entitled to the immediate possession of, the said real property and that the defendants have unlawfully kept them out of the same.'
A 'Writ of Possession' was awarded the plaintiffs.
An appeal on questions of law was perfected to the Court of Appeals, which court reversed the judgment of the Court of Common Pleas, holding that there is error apparent on the face of the record as follows:
'(1) Error in holding that the bankruptcy court had jurisdiction to sell the homestead tract subject to the homestead exemption right.
'(2) Error in holding that the order of sale, sale, confirmation and deed executed thereunder, even if in excess of the court's jurisdiction, are not subject to collateral attack.
'(3) Error in holding that Henry B. Converse and those claiming under him are estopped by laches from asserting in this proceeding that the bankruptcy court exceeded its jurisdiction and from asserting that the order of sale, sale, confirmation and deed executed thereunder were void.'
Thereupon the Court of Appeals dismissed the petition of the plaintiffs.
The case is before this court upon the allowance of a motion to certify the record of the Court of Appeals.
Frank J. Murray, of London, for appellants.
A. G. Kirby, of Plain City, S.E. Robison, of London, and Carrington T. Marshall, of Columbus, for appellees.
The defendants have presented and argued to this court two questions:
'1. Did the referee in bankruptcy have jurisdiction to order the sale of the reversionary interest in the homestead which had previously been set off to Henry B. Converse?
The defense of res judicata was presented by the amended answer of the defendants in the Court of Common Pleas, but that defense was not established successfully in either that court or in the Court of Appeals. The record shows that the following stipulation of facts was made in respect to this earlier case:
'(15) On September 18, 1918, the Common Pleas Court of Madison county, Ohio, entered a decree that said Elizabeth B. Converse was entitled to dower in the whole of the 280 acres, that she was still entitled to occupy the homestead, and that the deed of the trustees in bankruptcy to William Morgridge was null and void in so far as it purported to convey any interest by way of remainder or otherwise to the 5-acre homestead tract. The basis of that decree was that under the homestead laws of Ohio the jurisdiction of the bankruptcy court was limited to the setting aside of the homestead, and the court had no jurisdiction to sell the land upon which the homestead was assigned.
'(16) Appeal on law and fact from the decree of the Common Pleas Court was taken to the Court of Appeals, which Court on November 12, 1921, entered a decree that Elizabeth B Converse was entitled to hold said homestead tract as and for her...
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