Summary
interpreting Ohio's prior exemption statute, Section 11663–1 of the General Code
Summary of this case from In re AubielOpinion
No. 31801
Decided December 21, 1949.
Statutory construction — Language accorded common, ordinary and usually accepted meaning — Premises not used as a home, not a homestead — Intention to use in future, insufficient — Deficiency judgment after mortgage foreclosure, enforceable — Section 11663-1, General Code, inapplicable — Encumbered property never occupied as a home.
1. Language employed in a statute should be accorded its common, ordinary and usually accepted meaning in the connection in which it is used, and statutory provisions should be given a fair and reasonable construction in conformity to their general object in order to effectuate such object and purpose.
2. Premises which have not been used or occupied as a home have not been impressed with the character of a homestead. Mere intention to occupy premises at some indefinite future time is insufficient to establish a homestead.
3. The provisions of Section 11663-1, General Code, that a judgment rendered upon an indebtedness secured by a mortgage on real property, upon which there is located a dwelling which "has been used in whole or in part as a home or farm dwelling or which at any time was or is now held as a homestead by the person who executed or assumed such mortgage or other instrument, or which has been held by such person as a homesite, shall be unenforceable as to any deficiency remaining due thereon, after the expiration of two years from the date of the confirmation of any judicial sale of such property * * *" have no application where the property so encumbered has never been used or occupied by the judgment debtor as a home.
CERTIFIED by the Court of Appeals for Cuyahoga county.
This cause originated in the Court of Common Pleas of Cuyahoga County.
The parties will be referred to as they appeared in that court wherein the Mutual Building Investment Company was plaintiff and Harry Efros was defendant.
The plaintiff sought, by motion, to secure the revivor of a dormant judgment against the defendant. The right to such revivor was challenged by the defendant upon the ground that the judgment in question was based upon an indebtedness which was evidenced and secured by a mortgage upon a two-family dwelling and that such judgment was a deficiency judgment which had become effective on May 17, 1932. The question presented was whether such judgment had become unenforceable by virtue of provisions of Section 11663-1, General Code.
Following the hearing in the Court of Common Pleas, the court, upon the request of defendant, made a separate findings of fact and conclusions of law. A brief summary of the facts found is as follows:
The defendant, being unmarried, in the year 1922 was living with his parents in a residence in the city of Cleveland. Some time that year he purchased a two-family dwelling in the city of Cleveland for the purpose of establishing a home for himself and his parents. Neither the defendant nor his parents ever resided in the premises. Within six months after the purchase, owing to the fact that the defendant's parents desired to move to Palestine in the Holy Land, he sold the premises and within a few months thereafter the defendant also went to Palestine.
In 1931 a judgment was taken by plaintiff on the purchase-money note executed by the defendant when purchasing the two-family residence which was sold upon foreclosure in 1932, leaving a deficiency judgment of $525.02 in favor of the plaintiff.
No execution was issued on the judgment since its rendition up to the time of the filing of the motion of revivor, and when the motion of revivor was filed there was not outstanding in connection with the judgment any proceedings in aid of execution, creditor's bill, or any action to marshal liens.
The Court of Common Pleas held that the provisions of Section 11663-1, General Code, known as the "deficiency judgment" statute, is not applicable and granted the motion of the plaintiff for revivor of the judgment.
Upon appeal to the Court of Appeals on questions of law, the judgment and order of the Court of Common Pleas was affirmed.
The cause is in this court by reason of the certification of the record on the ground of conflict of the judgment agreed upon with the judgment of the Court of Appeals in the case of Vekoske v. Cleveland Trust Co., 81 Ohio App. 511, 79 N.E.2d 356.
Messrs. Gardner Spilka and Mr. Wm. E. Todd, Sr., for appellee.
Mr. Max Efros, for appellant.
The only question presented is whether the provisions of Section 11663-1, General Code, are applicable and by virtue thereof the judgment is unenforceable as to the amount unsatisfied from the proceeds of the mortgage foreclosure. Section 11663-1, General Code, reads (in part) as follows:
"Any judgment for money rendered in a court of record in this state upon any indebtedness, which is secured or evidenced by a mortgage, or other instrument in the nature of a mortgage, on real property or any interest therein, upon which real property there has been located a dwelling or dwellings for not more than two families which has been used in whole or in part as a home or farm dwelling or which at any time was or is now held as a homestead by the person who executed or assumed such mortgage or other instrument, or which has been held by such person as a homesite, shall be unenforceable as to any deficiency remaining due thereon, after the expiration of two years from the date of the confirmation of any judicial sale of such property, completed subsequent to the rendition of such judgment, or after August 19, 1939, whichever shall be later. * * *."
The property to which the exemption provision is applicable is "a dwelling * * * which has been used * * * as a home or farm dwelling or which at any time was or is now held as a homestead by the person who executed or assumed such mortgage * * * or which has been held by such person as a homesite." (Italics ours.)
It is to be observed that although the defendant at the time he purchased such dwelling contemplated its use and occupancy as a home for himself and his parents at some time in the future, neither he nor his parents ever did reside therein, but on the contrary all moved to a foreign country within a few months after the purchase of the property. The defendant never during the existence of the mortgage or at any time used such dwelling as a home.
It is contended, however, that the statutory exemption applies because the dwelling in question "has been * * * held as a homestead by the person who executed or assumed such mortgage." The Century Dictionary defines "homestead" as "A family's dwelling place, with the inclosure or ground immediately contiguous; an abode; a home." We may dismiss any contention that the premises constituted a "homesite" by quoting Webster's New International Dictionary definition: "A location suitable for a home."
The term "homestead" therefore contemplates occupancy as a dwelling place, and therefore in order to hold a dwelling place as a "homestead" it must at some time have been occupied as a home by one who claims the benefit of the exemption.
The language employed in a statute must be accorded its common, ordinary and usually accepted meaning in the connection in which it is used, and statutory provisions are to be given a fair and reasonable construction in conformity to their general object in order to effectuate such object and purpose. The purpose of the statute under consideration quite obviously was only to protect and safeguard the interests of home owners and owners of homesites and embraces only those who had used the encumbered property as a home during the existence of the mortgage, or, having actually occupied it as a home, continued to hold it as a homestead. It is to be observed that the exemption does not apply where the residence is held as a homestead for a future home or homestead.
In determining the meaning and application of the words employed by the law-making body in the statute in question, we may properly look to statutory provisions, long in effect, dealing with the subject of homesteads.
Premises that have not been occupied as a home or dwelling place have not been impressed with the character of a homestead and can not be claimed as such. To constitute a homestead under the statute there must be residence, actual or constructive. 20 Ohio Jurisprudence, 991, Section 23; Gibson v. Mundell, 29 Ohio St. 523, 527.
Mere intention to occupy premises as a home at some future time without residence or occupancy is insufficient to establish a homestead. Currier v. Woodward, 62 N.H. 63; Fort v. Powell, 59 Tex. 321.
Where premises have never been used or occupied as a homestead the right thereto can not be acquired by a mere intention to use them as such at some indefinite future time. Keyes v. Bump's Admr., 59 Vt. 391, 395, 9 A. 598. See, also, 40 Corpus Juris Secundum, page 456, Section 29, and 26 American Jurisprudence, 49, Section 78.
It follows that the judgment of the Court of Appeals should be and is affirmed.
Judgment affirmed.
WEYGANDT, C.J., HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.