207 N.W. 578 | Iowa | 1926
This is an action in equity for the foreclosure of a real estate mortgage securing the note of the defendant Bertha Griep and others, dated March 1, 1920. Bertha Griep 1. HOMESTEAD: was a nonresident of the state. As against her, rights of a writ of attachment was also sued out, and children: levied on her interest in 120 acres of land. devise of This appeal is concerned only with the decree as remainder. respects the rights of the parties under the attachment.
It was stipulated that the allegations of fact in the answer of Bertha Griep not denied in the reply were true, and that the allegations of the reply were true. It thus appears that, prior to their death, S. and Maria Werner were husband and wife, and were the owners as tenants in common of the 120 acres in question; that they lived on the land, which consisted of adjoining 40-acre tracts, the dwelling house being upon the middle 40. S. Werner died testate in 1917, leaving his widow, Maria Werner, and nine children, of whom the appellee Bertha Griep was one, surviving him. By his will the widow was given a life estate in the land, with remainder to the nine children, share and share alike. After the death of S. Werner, his widow *486 continued to reside upon the land until her death intestate, in 1922, leaving the nine children, including appellee, as her only heirs at law. It was also stipulated that Maria Werner elected to take under the will in lieu of any further interest she might have had in the estate of her husband. The homestead had never been platted during the lifetime of either S. Werner or his wife.
It is apparent that the appellee became the owner in reversion, after the life estate of her mother, of an undivided one ninth of an undivided one half, or an undivided one eighteenth, of the land, under the will of S. Werner, and of a like interest as heir at law of Maria Werner.
The lower court, with the consent of appellee and her co-owners, selected and established the homestead of S. and Maria Werner as the 40-acre tract upon which the dwelling house was situated, and decreed that the appellant had no lien by virtue of its attachment upon such 40 acres, and confirmed the lien of the attachment upon the interest of the appellee in the remaining 80 acres.
The appellant complains that the court erred in holding (1) that appellee was entitled to any exemption right in respect to the interest in the land acquired by the devise of S. Werner, her father, and (2) in limiting appellant's lien to the interest of appellee in 80 acres only, and in denying a lien upon her interest in the 40 acres selected by the court as the homestead. We do not have the benefit of an argument on behalf of appellee.
I. Assuming that S. Werner was entitled to a homestead in the undivided half of the tract owned by him, we think it is plain that the interest therein that passed to appellee under his will was subject to appellant's attachment.
Under the will, Maria Werner took a life estate in such undivided one half, and appellee took a remainder of an undivided one ninth thereof. The situation is controlled by Section 2985, Code of 1897, as construed and applied in Rice v. Burkhart,
II. It is settled that the homestead may consist of the owner's undivided interest in lands held in common. Livasy v. State Bankof Redfield,
The court, as we have said, with the consent of all of the owners, established the homestead in the 40-acre tract upon which the dwelling house stood. It is not clear that appellant is questioning the authority of the court to do this, under such circumstances; but the complaint is that the attachment was not established as a lien on the interest of appellee in the entire 120 acres passing to her by descent from her mother. If we understand counsel at this point, the contention is that, since it was held in Jonas v. Weires,
The appellee's undivided one eighteenth of the entire tract held under the will of her father and her undivided one eighteenth of the 80 acres, aside from the 40-acre tract set aside or established by the court as the homestead, held by descent from her mother, should be subjected to appellant's attachment. So modified, the decree will be affirmed. — Modifiedand affirmed.
De GRAFF, C.J., and STEVENS and FAVILLE, JJ., concur.