| Iowa | Dec 15, 1856
The order dismissing the suit was clearly erroneous. The replication denied the matters contained in the plea, and an issue of fact was thus formed which should have been heard. But we also think that the court erred in overruling the demurrer. The Code provides that a conveyance of the homestead, is of no validity unless the husband and wife concur in, and sign the same, and this homestead is required to embrace the house used as a home. Secs. 1247, 1250. Assuming for the purpose of this case, that a bond by the husband, for the conveyance of the homestead, upon certain conditions, could not be enforced, if resisted, on the ground, that it included or contemplated the disposition of such homestead, still this plea makes no such defence. It contains no averment that the property named in the bond, was the homestead at the time it was executed. For anything that is shown by the pleadings, this property did not become the homestead, until long after this contract was made. If not the homestead at the time of the agreement to convey, no subsequent adoption of it as such, could affect the validity of the respondent’s undertaking, or release him from his obligation. Without examining the other errors assigned, we conclude that for those referred to, the judgment must be reversed.