Lowell v. Shannon

Rothrock, J. I. In addition to the foregoing facts,' it should be stated that the defendants in their cross-bill asked that the sheriff’s sale and deed be set aside, and the defend [715] ants’ title be quieted, etc. We deem it proper to say this much in response to that part of the appellee’s argument in which it is claimed that the sheriff’s sale and deed cannot be attacked in a collateral proceeding. Upon the issues presented, the defendants by their cross-bill attack the sale in anas direct a manner as if they had by motion sought to set it aside before the deed was made. II. The principal question, and indeed, as it appears to us, the only question in the case is this: may a homestead be claimed by a family in lands of the husband, as against the creditors of the husband, where the husband and wife own contiguous tracts of land, and occupy the two tracts as a homestead, with the dwelling house on the land of the wife? And we may as well proceed to the merits of the question at once, for the demand made by Catherine Woods to the sheriff that the land in controversy should be set off and included, in the homestead, was just as valid a demand, so far as that question is involved, as if Michael Woods had been present and demanding the same thing. “The owner, or the husband or wife, may select the homestead, and cause it to be marked out and platted, etc.” Code, § 1998. And if the right of homestead attached to the land of Michael Woods, a sale made by the sheriff without platting the same was invalid. White v. Rowly, 46 Iowa, 680. It should further bo stated that it is charged in the cross-bill that Michael Woods is dead, or that, if he be still living, he has not at any time in any manner waived his homestead rights in the land in controversy. These facts dispose of any claim which can be made that the defendants, his children, can make no claim to homestead rights. The claim and demand made by the wife to the sheriff operated for the benefit of the family as effectually as if made by the husband and father. We come, then, to the merits of the controversy. If the dwelling house of the family had been located upon the land in controversy, there would be no question of the homestead [716] right, as claimed by the defendants. But, because the dwelling house is upon the land of the wife, it is maintained that the homestead cannot be made to embrace any part of the husband’s land. It is true, Sec. 1994 of the Code provides that “the homestead must embrace the house used as a home by the owner thereof, etc.” ■ But the term “owner’? cannot have much force in determining this question, 'because ownership as between husband and wife, is not a material question in' determining homestead rights. The homestead is exempt from judicial sale, “whether owned by husband or wife,” and either may make the . homestead selection. Code, § § 1988 and 1998. And it may embrace different lots and tracts, if •they are contiguous. Sec. 1995. Now, it appears to us to be entirely immaterial, so far as the rights of creditors are concerned, whether the legal title to the homestead be in the husband or wife, or whether one of them holds the legal title to one tract, and the other to another tract. The material inquiry is, what are the metes and bounds of the homestead, as a homestead; and there is nothing in the statute requiring that the title thereto should be in either the husband or wife. The object of the law is to secure to the family a homestead exempt from judicial sale, and, to attain this end, regard is had as to what particular forty acres of the farm is the homestead, rather than to the question whether the legal title to this part or that is in the husband or wife. We think the demurrer to the answer and cz-ossbill should have been ovezu-uled. Reversed.