91 Iowa 316 | Iowa | 1894
The petition alleges that the wife of plaintiff died in December, 1889, seized in fee simple of a homestead of two lots in the town of Iowa Falls; that the homestead was acquired about the year 1877, and was continuously occupied as a homestead by the decedent from the time it was acquired until her death; that the defendants Brown & Nichols are copartners under that name; that in May, 1891, they recovered a judgment in the district court of Hardin county against the plaintiff for the sum of two hundred dollars and costs; that the debt upon which the judgment was rendered was not contracted until about the year 1882; that the plaintiff has an • interest in the homestead as surviving husband of the decedent; that said creditors have caused an execution to be issued and levied upon the plaintiff’s undivided one third of the homestead; that the part levied upon hasbeen advertisedfor sale, and will be sold by the defendant Meador as sheriff, unless he is restrained from so doing; that the plaintiff has never had his distributive share set apart to him, and the property levied upon is not subject to sale under the execution. An amendment t© the petition alleges that decedent left surviving her a son, who was a minor
I. “ Where there is no special declaration to the contrary, the homestead of every family, whether owned by the husband or wife, is exempt from judicial sale.” Code, section 1988. Section 2007 provides that “upon the death of either husband or wife the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law.” Section 2008 contains the following: “The setting off of the distributive share of the husband or wife in the real estate of the deceased shall be such a disposal of the homestead as is contemplated in the preceding section. But the survivor may elect to retain the homestead for life in lieu of such share in the real estate of the deceased.”