72 Iowa 523 | Iowa | 1887
The defendant at one time was the owner of the north 43J feet of lot No. 41 in the city of Dubuque, on which is situated a four-story brick building, under which is a cellar. The plaintiff obtained a judgment against the defendant, and caused an execution thereon to issue and be levied on said real estate, which the defendant claimed was exempt on the ground that it was his homestead. A proceeding was commenced to determine the extent of the homestead right of the defendant, and this court held on appeal that “ the first and fourth stories of the brick building, and the cellar, (except that portion used by the defendant for the storage of provisions and vegetables for the use of his family,) were-'subjeet to be sold to satisfy the plaintiff’s judgment.” Johnson v. Moser, 66 Iowa, 536. In accordance with this judgment the plaintiff caused to be sold under execution such part of the cellar as above described, and the same was
I. The Revision, § 3606, provided that, whenever the object of the action was to effect partition of real estate among several joint owners, the petition must describe the property and the respective interest of the several owners. This section in substance is incorporated into the Code, with the exception that the words “joint owners’’are omitted, and as substitute therefor the words “ several owners ” have been adopted. (Code, § 3278.) Counsel for the appellant, therefore, insists that, whatever the rule was under the Revision, partition may now be had under the present statute, whenever real estate is owned in severalty by several owners, whenever the metes and bounds of the several portions have not been established, so that each portion may be readily known and determined. If this is not the precise claim made by counsel, it is undoubtedly, in our opinion, the logical result of his argument. The material portion of the relief asked is “ that the court determine and fix by metes and bounds the portion of the cellar in question to which the plaintiff and the defendant are each entitled.” This implies, and we think without doubt, that the parties own distinct portions of the cellar, unless the plaintiff does not own any of the real estate, but only an easement therein, as counsel for the defendant claims. We do not feel called on to determine this question; but, for the purposes of the opinion, it will be conceded that the plaintiff owns a portion of the real estate. While this concession is made, it does not follow that he is entitled to partition. The Oode'requires the court, in the manner therein provided, to ascertain the number of shares, and appoint referees to make partition accordingly. (Code, §§ 3289, 3290.) This clearly implies
AFFIRMED.
