180 Iowa 975 | Iowa | 1917
Haintiff and his deceased wife, for years prior to her death, occupied the premises in question as their homestead, and plaintiff has continuously since the death of his wife resided thereon. Shortly after the death of Adelia Coleman, a new house was erected near the old one, plaintiff and his family occupying the former, and Leslie Coleman, a married son, the latter. Some of the children have at all times resided with plaintiff, and at the time of the trial, a daughter kept house for him. Leslie Coleman had charge of the farm, paying plaintiff some grain rent therefor.
■ We will first dispose of appellant’s contention that the distributive share set off to appellee is subject to- execution. In Briggs v. Briggs, 45 Iowa 318, the distributive share of the surviving widow was set off to include the buildings and part of the original homestead. The court, in discussing the question of its exemption from execution, said:
“Before that, she had the right to possess and occupy and enjoy the rents and profits of 40 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% acres. The 26% acres, however, continued to be her homestead, and so continue as long as she occupies it as such with her family. * * * The Singer Manufacturing Company have in ho way been*979 prejudiced by this act. She had a right to possess the entire 40 acres, during her life, as a homestead. If she had done so, she could not have had any portion of the 80 acres set off to her in fee, because she would have been in possession of more than one third of its value. If, then, she had continued to occupy the 40 as a homestead, she would have had ho interest in the 80 which could-have been subjected to the judgment of the manufacturing company. They are placed in no worse condition than they were in before, if their right to this lien is denied. And we are of the opinion that, as the dwelling house and 26% acres, stt apart to plaintiff, have never been divested of their homestead character, no good reason can be given for permitting the judgment in question to become a lien upon them.”
In Nye v. Walliker, 46 Iowa 306, the wife’s dower was set off so as to include a portion of her husband's estate occupied by her as a homestead before and after his death. The court held that a judgment recovered against the wife after the death of the husband was not a lien thereon.
In Knox v. Hanlon, 48 Iowa 252, the court said:
“But even if it should be conceded that the whole of the debt to defendant was contracted prior to the setting apart of this property to Catherine Hanlon as her distributive share, it did not, upon being so set apart, become liable for this debt. The property in question was the homestead of Catherine Hanlon and her husband. Upon the death of her husband, the homestead became hers. The same property that constituted the homestead was after-wards set apart to her as her distributive share, in fee simple. In Briggs v. Briggs, 45 Iowa 318, we held that, where a wife had her distributive share in her husband’s estate assigned to her in fee, including a part of the homestead, it did not become liable for a judgment existing against her at the time.”
In Hornbeck v. Brown, 91 Iowa 316, in which the interest of the survivor was held liable to execution, it appeared that the surviving spouse, who was the judgment debtor, had no.t and did not intend to occupy his former homestead, but had abandoned the same.
Peebles v. Bunting, 103 Iowa 489, was a suit brought by the heirs of the deceased husband of the judgment debt- or to quiet title to certain lands against the purported liens of judgments rendered against the surviving widow. The widow did not occupy the premises at the time of the commencement of the suit, and had not for about two years, and did not live thereon for a period of seven years at another time. The court held that she had not elected to take the homestead in lieu of dower, and that her distributive share was subject to execution. The court, however, said:
“There is no claim that the land is exempt under the provision of Section 2441 of the Code [1873].” (This section corresponds to Section 3367, Code of 1897.)
In Benjamin & Askwith v. Doerscher, 105 Iowa 391, the court said:
“It appears conclusively from this answer that there is no purpose to further occupy the homestead ■ left by the husband, but it clearly appears that appellant’s intention is to take her distributive share in her husband’s estate, and with it make a new home. There is no purpose to preserve the homestead x*ight, instead of taking a .distributive •share, but the intention is to take the distributive'share, which, of itself, defeats the hoxnestead right; and then the claim is that she takes her share of the proceeds of the homestead exempt from liability for her prior debts, because it is her purpose to use that, with the remainder of her distributive share of the estate, to make a new home.*981 The law gives to the surviving wife or husband no such right. No such a claim could be reasonably urged, except on the basis of an existing homestead right. The taking pf the distributive share in the estate divests the homestead right. Code, 1873, Sections 2007, 2008; Whitehead v. Conklin, 48 Iowa 478; Butterfield v. Wicks, 44 Iowa 310; Meyer v. Meyer, 23 Iowa 359. It is not made to appear that her distributive share will include the homestead lot or lots, so that, if it could be done, the rule could be made to apply that, where the homestead is set apart as the distributive share of the widow, she takes it exempt from debt contracted prior to that time. See, for such rule, Code, 1873, Section 2441; Knox v. Hanlon, 48 Iowa 252; Briggs v. Briggs, 45 Iowa 318. It is there held that, if the homestead is set apart to the widow as her distributive share, she takes it exempt from debts of hers contracted prior to that time. As we understand the .facts of this case, the widow purposes to take her distributive share exempt from liability for her debts, and invest it in a new home. No authority cited sustains such a right.”
Edinger v. Bain, 125 Iowa 391, is apparently in conflict with the holding in Briggs v. Briggs and Knox v. Hanlon, supra; but, as the court cites Benjamin v. Doerscher, 105 Iowa 391, and Hornbeck v. Brown, 91 Iowa 316, the decision in each of which rests upon the fact of the abandonment by the surviving spouse of the homestead before the levy, and as, in Edinger v. Bain, supra, the wife had caused the real estate of her husband to be sold without having her distributive share set off to include the homestead, taking one third of the proceeds of the sale of the land, the writer of the opinion doubtless based his conclusion upon the doctrine announced by the cited cases, and, as thus construed, it is not in conflict with the cases cited by him.
It will, therefore, be observed that the distributive
The disposal of the homestead by setting off the distributive share to the survivor to include the dwelling, amounts to nothing more than a waiver on the part of such survivor of the right to possess and occupy the tohole homestead. It fixes the right of the survivor in the real estate of the deceased spouse. The real estate occupied as a home
The effect of the holding of this court Is to exempt the distributive share, set off to include the dwelling, to the extent of the homestead, from judicial sale.
Appellee was not a party plaintiff or defendant in said suit, offered no testimony in his own behalf, and had no right or opportunity to examine or cross-examine witnesses, or appeal from the judgment rendered.
To sustain his contention, counsel cites, among others, the following cases: McNamee v. Moreland, 26 Iowa 96; Stoddard v. Thompson, 31 Iowa 80; Conger v. Chilcote, 42 Iowa 18; Marsh v. Smith, 73 Iowa 295; Montgomery v. Alden, 133 Iowa 675; Bellows v. Litchfield, 83 Iowa 36. A careful reading of these will show some direct interest in the subject matter -of the suit, and direct representation, ‘or such participation therein as to amount virtually to management or control of the litigation.
A person not a party to a suit is not concluded by a judgment rendered therein merely because he employs an attorney to assist in the trial thereof. Cockins v. Bank of Alma, (Neb.) 122 N. W. 16; Williamson v. White, (Ga.) 28 S. E. 846; Loftis v. Marshall, (Cal.) 66 Pac. 571; State v. Johnson, (Mo.) 27 S. W. 399; Litchfield v. Crane, (U. S.) 31 L. Ed. 199; Central Baptist Church v. Manchester, (R. I.) 23 Atl. 30.
Nor is privity established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts. Rookard v. Atlantic & C. Air Line R. Co., (S. C.) 65 S. E. 1047. See also Stryker v. Crane, (U. S.) 31 L. Ed. 194; Bigelow v. Old Dominion C. Min. & S. Co., (U. S.) 56 L. Ed. 1009; Hart v. Moulton, (Wis.) 80 N. W. 599.
' Plaintiffs in that suit were claiming to own the 116-acre tract, subject only to the homestead right of appellee, and unless the court found in their favor upon this claim,
Appellant’s plea of estoppel cannot be sustained.
III. Other questions referred to by counsel for appellant in argument will not be discussed herein, for the reason that we deem the foregoing matters controlling, and the judgment of the lower court must be — Affirmed.