45 Iowa 318 | Iowa | 1876
She elected to have her distributive share set apart in fee, including the dwelling house before used as a homestead. The distributive share was less in extent and less in value than the original homestead. The question is, does this distributive share, carved out of the original homestead, become liable for a debt for which the homestead was not liable? In order to determine this question we must consider what changes as to the property were effected by the election-of the wife to have her interest set apart in fee. Before that, she had the right to possess and occupy, and enjoy the rents and profits of, forty acres. After that, her estate was extended as to duration, but was circumscribed as to territorial extent. She acquired a right in fee, but it was limited in extent to 26-f acres. The 26-f acres, however, continued to be her homestead, and will so continue as long as she occupies it as such with her family. She has
It is claimed, however, that the record does not show but that this debt was contracted before the homestead was acquired; and that, if so contracted,, the judgment would be a lien upon the homestead, though'rendered after the acquisition thereof. But it is apparent that the decision of the court below was not based upon -this ground. The petition alleges that the indebtedness, on which the judgment was rendered, was. contracted since the plaintiff’s homestead rights in the property accrued. The Singer Manufacturing Company demurred to the petition, and the demurrer was sustained. The plaintiff refused to amend, and stood upon her petition, and judgment was thereupon rendered against plaintiff, in favor of the party demurring.
. The plaintiff’s petition being thus held insufficient, as to the Manufacturing Company, plaintiff had no opportunity to introduce proof as to the time of contracting the indebtedness.
The cause will be remanded, with leave to the Manufacturing Company to put in issue this allegation of the petition, if so advised.
Reversed.