By the Court—
BROWN, C. J.,delivering the opinion.
In this case the sheriff returns that he has levied the within warrant upon the stock in trade, of the defendant Russell, and in his possession. And the first question made by the record is, who was entitled to the conclusion of the argument. Section 3686, of the Revised Code declares, that “upon the trial of all claims provided for in this chapter, the burden of proof shall lie upon the plaintiff in execution, in all cases where the property levied on is, at the time of such levy, not in possession of the defendant in execution. The party upon whom the burden of proof rests, is entitled to the conclusion; and it seems to rest upon the plaintiff in execu*199tion in all cases, except the single one, where the defendant in execution is in possession at the time of the levy. In that case the burden of proof rests upon the claimant, and we hold that he is entitled to the conclusión.
In the case at bar, the return of the sheriff shows that the defendant was in possession at the time of the levy. And it is proper that it should show in all cases, who is in possession. But if it should not, we think the first enquiry for the Court is to ascertain whether the defendant in execution was in possession at the time of the levy; if so, the claimant assumes the burden of proof and concludes; if not, the burden is upon the plaintiff in fi. fa. and he concludes. The old rule of Court said: “In all cases of claims as the .burden of proof rests with the plaintiff in execution, he is entitled to the conclusion,” etc. Then there was no exception. But the new rule is different. It says: “In all cases of claims where the burden of proof rests with the plaintiff in execution, he is entitled to the conclusion.” Taking this rule and the section of the Code together, we think the proper construction is, that the plaintiff in execution is entitled to the conclusion in *all cases, except the single one, where the defendant is in possession at the time of the levy.
If the defendant is not in possession at the time of the levy, the burden of proof rests upon the plaintiff and he is entitled to conclude. And if he shows the defendant to have been in possession of the property levied upon, at any time since the rendition of the judgment, he makes out a prima facie case, and may stop there till the claimant shows title in himself, but he is still entitled to conclude, as he has assumed the burden of proof. The exception made by the Code and rule of Court to the general rule, was no doubt made in consideration of the fact that it is the sheriff's duty to show by his return, who is in possession of the property levied upon; and in that case the Court can see by an inspection of the return, whether the defendant was in possession at the time of the levy. But as the sheriff may sometimes neglect this duty, or the return may not show the fact, as in case of the possession of the defendant by his tenant or the like, we think when a claim case is ready for trial, the Court should first satisfy his mind on this point, and then direct the proceedings accordingly.
2. We see no reason why the head of a family may not file a claim for the benefit of the family, when property set apart under the Homestead and Exemption laws of this State is levied upon for the payment of any debt to which it is not subject. Trespass is a proper remedy in such case, but it is not the only one. The family are not obliged to wait till they are turned out by the sheriff under an illegal sale, and then sue for the damages. They may arrest the illegal proceeding by a claim, under our general laws on that subject.
*2003. It is the duty of the applicant for Homestead or Exemption, to file with the Ordinary a schedule, describing the personal property with reasonable certainty. And we think the Ordinary in this case should, as matter of practice, have required a more particular description. But as the creditor did not appear and file any objection on that ground, and as no fraud or unfairness is alleged or shown, we do not think this schedule so imperfect as to invalidate the judgment of *the Court of Ordinary, or to authorize the plaintiff to attack it collaterally on the trial of the claim case in another Court.
Nor do we think there is anything in the objection, that the property could not be set aside as exempt because it was not attached to the homestead, or necessary about a homestead of realty, etc. The Constitution makes no such exemption as the plaintiff in error contends for in this case.
Judgment affirmed.