Conger v. Cook

57 Iowa 49 | Iowa | 1881

Rothrock, J.

I. As we understand it, the appellee does not claim that appellant’s distributive share should be charged with any part of the judgments. Pending the appeal he served a notice on counsel for appellant to the effect, that if the decree should be construed to make such charge he would consent to its modification. This question may therefore be considered out of the case.

^ádireasm-ementoi: taxes. II. It would have been a much more preferable mode for adjusting the rights of these parties if there had been an order made requiring one-third in value of the real estate be set off to the widow and then after ascertaining the tracts assigned to her make the order as to the liens. The order is so indefinite, as it is, that we are not able to determine the question intelligently. It appears that the taxes have been paid by the administrator from the personal estate. They were therefore no longer a lien, and should not be made a charge upon any of the land.

2. homeSTEAD : liens. III. The counsel for appellee protests that the decree makes no charge upon the homestead excepting one-third of the mortgage which was upon the homestead alone, and that as to the other mortgage the widow’s distributive share is subjected to a pro rata primary liability. The decree may, we think, be so construed. If so it is in accord with the case of Trowbridge v. Sypher, 55 Iowa, 352, and charging the homestead with no more than one-third of the mortgage which is upon it alone is not inconsistent with the cases of Wilson v. Hardesty, 48 Iowa 515, and McGlothlin v. Hite, 55 Iowa 392. In those cases the mortgages included the homestead and other lands.

Modified and Affirmed.