59 Iowa 517 | Iowa | 1882
The defendants insist that the case comes within the rule in Wright & Co. v. Ditzler, 54 Iowa, 620. In that case the building was held exempt as a homestead, notwithstanding the lower story was occupied as a store. It was thought to be distinguishable from Rhodes, Pegram, & Co. v. McCormick, 4 Iowa, 368, on account of the size and character of the building and the purpose for which it was originally intended. Some importance also was attached to the fact, that access to the second or residence story was had through the lower or business story, and through the business room itself, which rendered a sale of the lower story impossible, without a positive interference with the defendant’s homestead rights. The case at bar is different, and falls more nearly, we think, within Rhodes, Pegram & Co. v. McCormick, and the doctrine of that case we think must govern. We are aware that the decision has been criticised, and some doubt may exist in regard to its correctness, but it has stood so long, that we should not be justified in overruling it, even if we were otherwise disposed to do so.
We have to say, however, that we do not think that the decree can be wholly sustained. .The sale of the entire lower story would include the stairway by which the residence story is reached from the street. As the stairway is partitioned off, we think that so much of the lower story as ij occupied
As to the small apartments constructed in the first story by partitions about seven feet high, we have to say that they seem to constitute essentially a part of the room out of which they are carved, which room, as we hold, being mainly a business room, is not exempt. "We see no occasion for any modification of the decree, except in regard to the stairway and the so called barber sbop. The exemption, we think, should be extended so far as to embrace them with the other parts held exempt.
Modified and Affirmed.
