14 Iowa 49 | Iowa | 1862
- It will be noticed that by the agreement of the parties the court below was limited in its decision upon the facts stated, first: to the abstract question whether the defendant was entitled to claim exempt from execution sale, a homestead in an undivided tract of land, in which other parties have an undivided interest, as tenants in common. -If so, then, secondly: whether the defendant can claim more than forty acres as a homestead ?
This last proposition is very clearly settled in the affirmative by § 2284, Rev. of 1860, to the effect that if the homestead is not within a town plat, it must not embrace in the aggregate more than forty acres, nevertheless, if, when thus limited, its value is less than $500, it maybe enlarged till its value reaches that amount.
In regard to the first proposition, it does not necessarily include the question whether a tenant in common can set up the defense of a homestead in an action of right without an appeal to the chancery side of the docket to have the same recognized and set apart as in cases of partition. Neither the agreement of the parties, nor the pleadings raised the question as to the proper method or proceeding of having a homestead of a joint tenant set apart or protected. It is true the plaintiffs by their demurrer to defendant’s plea did raise such a question, but waived it by replication and subsequent stipulation making and agreeing upon a particular issue upon which they went to trial. Tn
We proceed, therefore, to consider briefly the question whether a joint tenant can claim under the statute of this state the homestead privilege against his co-tenants. Why not ? The first section of the homestead law exempts from judicial sale the homestead of every head of a family, when there is no special declaration of the statute to the contrary. The only exceptions or declarations to the contrary are to be found in §§ 2280, 2281. Joint tenancy is not one of these. How this homestead privilege is to be secured to the party claiming it, as a tenant in common with others, is altogether a different question, but not before us for determination.
The undivided one-fourth of the lands in question was about ninety acres. The amount claimed by defendant as a homestead was so much less than this, and located in such a form as not to affect materially the value and form of the remaining lands, that we suppose the plaintiffs were content with the division as made and claimed by defendant, provided he was entitled to a homestead at all under the circumstances, and hence the submission of the question in the particular form specified.
The appellant, however, to sustain his position that a homestead cannot be taken out of and identified upon land held in common, cites 5 California, 244, which holds this language: “ The statute did not contemplate that homesteads should'he carved out of land, held in joint tenancy, or tenancy in common, since it has provided no mode for their separation and ascertainment.” A similar ruling was made in 6 California, 165. ■
But can such a reason be rendered in view of the provisions of our statutes ?
Such a ruling is founded in obvious justice and reason. The homestead right is derived alone from the statute, but cannot be claimed and enforced by one tenant in common to the detriment of his co-tenants. Hence if he should happen to have erected and occupied a homestead on a piece of land which could not be partitioned without great prejudice to his co-tenants, it would have to be sold, but in that event the court would see that the 'value of the homestead and improvements, distinct from the land,«would be secured to the party at whose expense and labor they had been made. From this last suggestion, it will readily be perceived that the manner of recognizing and setting apart
Although the proceedings in this ease were irregular, we do not interfere with them; we are not required by tbe record to settle any question of procedure, but simply a principle or right, and this we determine, as tbe court below did, in favor of the defendant, and therefore the judgment is
Affirmed.