1 I. Plаintiff and defendant were married in Iowa in 1880, and soon thereafter removed to Oregоn, where they lived together for a time, after which the defendant returned to Plymouth county, Iowa; the plaintiff remaining in Oregon. After about eleven years’ separation, the defendant returned to Oregon, and there lived with her husband until 1893, when they returned to Plymouth county, аnd went to live together on a certain eighty-acre tract ’ of land owned by the defendant. They lived together thereon until October 20, 1896, when the defendant left the plaintiff, аnd has ever since lived apart from him; he continuing to live upon and cultivate said land. Defendant brought an action for divorce on the ground of cruel and inhuman treatmеnt, and in November, 1896, after a hearing on the merits, her petition was dismissed. Soon thereafter the defendant, without the plaintiff’s knowledge, caused a survey and plat of a hоmestead in said land to be made and recorded, which she now asks to have cоnfirmed. Thereafter plaintiff commenced this action to set aside said seleсtion, and to restrain the defendant, as already stated. Pending this action the plaintiff caused the west forty of said eighty acres to be surveyed, platted, and recordеd as a homestead, and it is this selection which he asks to have confirmed.
*6172*616II. Appellant’s counsel state the questions to be considered as follows: “(1) Which of the homesteads selected, platted and recorded (the one by the appellant, or the one by her husband) shall be preferred, and allowed to stand as the homestеad of the family ? (2) Who is entitled to cultivate the homestead, whichever it may be, and to enjoy the crops, the rents and profits therefrom?” They say: “As to which one of the two selections of homestead shall be allowed to stand depends upon the rights of the respective parties, at the times they made their respective selections, to select, plat, and record a homestead from the eighty-acrе tract *617owned by the appellant, and occupied by them as a homestead, and not upon the form, the fairness, or the convenience of such selectiоns.” Appellee does not question that the right to select the homestead was рrimarily in the owner, nor that her selection, if fairly made, with due regard to his rights, should control. He insists that her selection was made in bad faith, and with intent to deprive him of his homestead rights; thаt she selected the poorest, roughest, and most unproductive part of the land; and that her selection is cut off from convenient access to the highway. Annellаnt’s selection is out of the southeast corner of the eighty p the lines being at right angles, and so as to include the buildings, and ready access to a highway. If it be true that the land sеlected by appellant is not the most productive part of . the eighty, yet we knоw of no law that would compel the appellant to select the most prоductive part. There are many reasons that might control in making such a selection, — as, for instance, that the most productive part should be reserved for the purрose of renting. If it may be said that appellant was bound to malee her seleсtion with regard to the rights of appellee, we think the evidence fails to show that her selection was not so made. The right to select being primarily, if not exclusively, in the appellant, and she having made the selection that she did, we conclude that that selection must control. Having reached this conclusion, we are not required tо determine whether the right of selection was exclusively with the appellant, nor whеther appellee had any right to select.
3 III. The further contention as to which оf these parties is entitled to enjoy the homestead is easily answered. They are both entitled to live upon and enjoy it, but, so long as appellant chooses to live elsewhere, she is not entitled to any benefit from the homestead, and appellee is entitled to have the full right to farm and cultivate the same so long as he сontinues to live upon and occupy it as a homestead. The decree of the district court is reversed, and the case remanded for a decree in conformity with this opinion. Reversed.
