Wertz v. Merritt Bros.

Robinson, J. SaifsactSns ceased?6 de_ s gott • of laud dene?: evi" I. It is insisted on the part of Joseph Wertz that the evidence is sufficient to establish his alleged ownership of the forty-acre tract which he claims ; but in this view we do not concur. The evidence of Joseph Wertz and wife as to the alleged verbal agreement with decedent is made incompetent by section 3639 of the Code, and must be disregarded. There is conflict in the evidence as to this issue ; some of the admissions of ^osePk teeing to show that after the death father he made no claim of right to this tract, but expressed a desire to obtain it. The evidence shows that decedent had at different times expressed an intention to give this tract to Joseph, but that he never fully decided to do so. During the twenty years Joseph occupied the land, it was sometimes farmed by himself alone, sometimes by himself and brother, the plaintiff, and sometimes, perhaps, by his brother alone. It is unnecessary to state the evidence more fully. In our opinion it fails to sustain the claim of Joseph that he became the owner of the land by virtue of an agreement with decedent. It was therefore properly treated as a part of the land to be partitioned. [687] 3' S°ieasehoid: aneylno:o“" ment:ienf' [686] II. It is next urged that the evidence shows beyond question that Joseph occupied the forty-acre [687] tract claimed by him, including all that allotted to him by the partition proceedings, for more than twenty years, or since 1866 ; that during all that time he was the head of a family, and occupied the tract as a homestead; that such occupation has at all times continued since the death of his father, the decedent; and that for that reason the land allotted to him is not subject to the payment of the judgment of Merritt Bros. The occupation by Joseph may be conceded as claimed, and it may also be conceded that a homestead right may be acquired in a leasehold estate. Pelan v. De Bevard, 13 Iowa, 53. We think the evidence shows that Joseph was the tenant of his father from 1866 to the death of the latter, and that during that time he had a homestead interest in the land upon which he lived. But Joseph does not base his claim upon any leasehold interest. By the showing of his answer, his obligation to pay a share of the crop terminated with the death of his father. But, assuming that he was a tenant at will, his right could have been terminated on the first day of March, 1887. Code, secs. 2014, 2015. Therefore his present right is not derived from any interest he had in the land prior to May 24, 1886. It is urged that he was a tenant in common, and that as such he acquired a homestead right to> the tract he occupied. ' This court has held that such a right may be acquired by a tenant in common. Thorn v. Thorn, 14 Iowa, 53. If we concede that Joseph was a tenant in common, his tenancy as such commenced with the death of his father at the earliest, and his present homestead right cannot antedate that time. The evidence shows that the debt on which the judgment in favor of Merritt Bros, was rendered was in existence as early as the fall of 1885 ; therefore, unless the present homestead right is a continuation of the former one, the land is subject to the lien of the Merritt Bros, judgment. We know of no rule of law which would justify us in holding that there was such a continuation of the homestead right. The leasehold right was entirely independent of that now held. [688] The present right did not in any manner flow from the former. While it is true that a part of the land formerly occupied by Joseph was allotted to him by the referees, yet he had no legal right to compel such allotment. It was not the case of a tenant in common who as such had entered into possession of a part of the common estate, and made, valuable improvements thereon with the assent of his co-tenants. In this case no possession- was taken, nor were any improvements made after the estate in common became vested. Prior to the death of his father, Joseph had no vested right in anything except the right to occupy the land by the year, and possibly the right to compensation for improvements. We therefore conclude that the land allotted to Joseph Wertz was subject to the payment of the judgment in favor of Merritt Bros., and that the district court should have so decreed. The decree is affirmed as to the appeal of Joseph Wertz, andas to the appeal of Merritt Bros., it is Reversed.