81 Iowa 319 | Iowa | 1890
The case must be reversed, and, as we are unaided by brief from appellee, we limit our consideration to a single question. See McKern v. Albia, 69 Iowa, 447; Deeds v. Chicago, R. I. & P. Ry. Co., 69 Iowa, 164; Gilfeather v. Council Bluffs, 69 Iowa, 310.
A point urged in argument by the appellant is, that the husband, who was a party to the foreclosure proceeding, cannot, in this case, set up the homestead right of the wife as a defense, and it seems difficult to gainsay the proposition. With the . amendment, the plea appears to be one personal to the defendant; that is, he does not seek to defend for his wife, but for himself, because of a “right and possession ” acquired “through the homestead right of the wife.” Being a pai’ty to the foreclosure suit, if he had a homestead right available to him as a defense therein, he must interpose it, or the right is lost. Now the wife was not a party to that proceeding, and any rights he had available to Mm because of the wife’s homestead right (if there could be any) was just as available for defense in that suit as in this, and just as available then as.any other right he had. We must assume, then, that all
