164 Iowa 180 | Iowa | 1914
In December, 1911, M. D. Haynes died intestate, seised of eighty acres of land upon which there were at the time two mortgage incumbrances; the first for $1,000 being for a part of the purchase money, it having been assumed by Haynes at the.time of purchase, and the second for $400, given to secure indebtedness incurred after the purchase. Upon his death he left as survivors his widow, the appellee, and seven children, three of whom at the time of the commencement of this action were minors, all of whom are made defendants. The widow, Elizabeth Haynes, in this action sought to have set apart to her in her own right one-third in value of the real estate, including the homestead, claiming that she was entitled to have all sold, and that the mortgage claims should be paid from the proceeds of that outside the homestead before it should be subjected to any part of the indebtedness. The defendant claimed that $1,000 of the mortgage indebtedness was assumed as part of the original transaction of purchase, and that the widow’s right in the real property was only in such as remained after payment of the purchase-money indebtedness, which should be from the entire proceeds. Upon the trial the facts were conceded as set out in the pleadings, and as are contained in the foregoing statements. The trial court found that at the time of his death M. D. Ha-ynes was occupying the property as a homestead, and that since his death his widow, the plaintiff, has continued
Stated concisely, the claim of appellants is that, when real estate is purchased subject to an existing mortgage, which is assumed, and is therefore a part of the purchase money, upon the death of the husband the widow !s right as to dower, including the homestead, attaches only to that which remains after payment of the purchase-money -indebtedness. As thus presented the question has never been directly before us for decision. By many previous decisions of this court it has been held that the dower interest in real estate attaches subject to the superior right of a purchase-money mortgage, and that the widow is not entitled to' assert it as against the prior claim based upon a purchase-money lien. Thomas v. Hanson, 44 Iowa, 651; Kemerer v. Bournes, 53 Iowa, 172; Noyes v. Kramer, 54 Iowa, 22; Snyder v. Richey, 150 Iowa, 737. But in the cited cases the question'as to rights of the widow when dower is sought to include the h^meste^was-nut-inYQlved nor considered. There were only the questions of the rights of creditors or purchasers. The present ease seeks no impairment of the rights of the mortgage creditors to have their liens satisfied from the real estate, but, as between the widow and the heirs, asks to have the interests of the latter first subjected to the purchase-money lien, before the homestead in which dower is asked shall be subjected to any part of the claim.
It is a rule, often stated by this court, that when a widow elects to take her distributive share under the law, which embraces a part or all of the homestead, the property other than that set apart to her must first be subjected to a mortgage lien upon the whole premises, her share being liable only for the deficiency. Wilson v. Hardesty, 48 Iowa, 515; McGlothlen v. Hite, 55 Iowa, 392; Bissell v. Bissell, 120 Iowa, 127. The policy of the law is to protect the homestead in so far as