58 Iowa 399 | Iowa | 1882
The defendant complains of the order because it did not set aside the entire sale, and because, also, it limited the homestead to an undivided half of forty acres.
It does not appear to have been expressly found by the court that the defendant Reilly had a homestead in the premises, but the order must have been based upon the theory that such was the fact.
Let us suppose that Nugent is the owner of the other undivided half, and that he redeems and applies for a partition; he is entitled to have it made wholly irrespective of any division theretofore made by the sheriff for the purpose of giving Reilly a homestead. The order as it now stands contemplates that Reilly’s undivided one-half interest in a distinct parcel, embracing 120 acres, shall first be sold, and in case the amount of the execution is not realized, that Reilly’s undivided one-half interest in another distinct parcel, embracing forty acres, be sold. Unless the same person should purchase both parcels, or unless Reilly should redeem both, Nugent would become tenant in common with one person in one parcel and with another person in another, and would be put to the expense of two separate actions for partition, and be subjected to a probable loss resulting from two divisions of the property instead of one.
Having' reached the conclusion that a homestead cannot properly be set off in such case, it follows that the court erred in directing that a homestead be set off, and erred in setting , aside the sale in part, in order that a homestead might be set • off. But, notwithstanding the error, the case, we think, is .not in such a condition that we should be justified in reversing. The plaintiff has not appealed, and the appellant complains only because the court did not go further. As we •think that the appellant was not entitled to have any home- . stead set off, we cannot reverse for the purpose of giving him . a larger one.
The co-tenant may complain when the order comes to be ■ executed, but we cannot reverse to prevent an injury to the. ■ co-tenant, which he may possibly, under the circumstances, regard as theoretical rather than actual. The judgment of the Circuit Court is therefore
Arrirmed.