Robinson, J. The material facts alleged in the petition and admitted by the demurrer are substantially as follows: Plaintiff' is the widow of R. S. Strong, who died in the year 1875. During his lifetime he became the owner of the northwest quarter of the northeast quarter of section 8, township 73, range 2, in Louisa county, and he and the plaintiff occupied it as their homestead until his death occurred, in 1875.
In December of that year, the plaintiff, as the widow of decedent, elected to retain the premises described as a homestead, for life, and, on her application, an order that she so retain it was made by the circuit court of Louisa county. Since that time, she, with the children of her late husband, have continuously occupied the premises as a homestead. Seven children of the deceased survived him, and were the owners in fee of the premises, subject to the right of plaintiff to possess and occupy it during life.
In December, 1881, one of the daughters of decedent died, unmarried, leaving as her sole heir the plaintiff. In April, 1880, 102 the defendant A. Garrett obtained a judgment against the plaintiff in the district court of Louisa county, and afterward caused an execution issued thereon to be levied upon an undivided one seventh of the premises described, subject to her homestead rights, as the interest she had acquired from the deceased heir of her late husband.
The interest' so levied upon was sold in December, 1890, to the judgment creditor, for a portion of the amount due on the judgment, and a certificate of purchase was issued to him. The indebtedness on which the judgment was rendered was contracted after the premises in question were occupied by plaintiff and her husband as a homestead. This action is brought against Garrett and the sheriff to set aside the sale, and to restrain the sheriff from executing a deed thereunder.
The question we are required to determine is, whether the interest in the premises which plaintiff acquired by the death of her daughter was subject to sale under the judgment described. The plaintiff rightly claims that the judgment was not a lien upon her homestead right, and she contends that the undivided one seventh of the premises in fee was merged in her homestead right, and thus became exempt from the lien of the judgment, and from the execution to satisfy it.
A merger occurs when a greater estate and a less coincide and meet in one and the same person without any intermediate estate. In such a case the less is merged in the greater estate, not the greater in the less. An estate for years or for life would be merged in an estate in fee; and, as a general rule, the different estates must be held in the same legal right. 2 Bouv. Law Diet., tit. “Merger4 Kent, Comm. [Id Ed.], 114; 15 Am. and Eng. Encyclopedia of Law, 313, and authorities therein cited.
In 4 Kent, Comm., 116, it is said of the merger of estates: “If they are held in different legal rights, there will be no merger, 103 provided one of the estates be an accession to the other merely by the act of law, 'as by marriage, by decent, by executorship or intestacy.
This exception is allowed on the just principle that, as merger is the annihilation of one estate in another by the conclusion of law, the law will not allow it to take place to the prejudice of creditors, infants, legatees, husbands or wives.” Under the rules cited the only merger which • could have occurred in this case under any permissible view of the law, is that of the homestead right in the estate in fee to an undivided one seventh of the premises described.
That such a merger would not have been for the interest of plaintiff is apparent, unless the estate remaining would be exempt from sale under the judgment in controversy. Upon the death of the husband or wife in whom the legal title to a homestead is vested, the title thereto descends to the heirs of the decedent, subject to the rights of the survivor. Cotton v. Wood, 25 Iowa, 48; Burns v. Keas, 21 Iowa, 257.
Where the survivor elects to retain the homestead for life in lieu of his distributive share in the real estate of the intestate, who, in this case, left children surviving, the interest of such survivor in the homested is thereby limited to the right to use and occupy it during his lifetime. Smith v. Zuckmeyer, 53 Iowa, 14, 3 N. W. Rep. 782; Whitehead v. Conklin, 48 Iowa, 478.
In such a case there are two estates in the homestead— one for life in the survivor,'and one in fee in the heirs, subject to the life estate. The title in the heirs is vested, although without the right of immediate possession, and may be alienated by them. Judgments in the supreme and district courts of this state are liens upon the real estate owned by the defendant at the time of such rendition, and also upon all he may subsequently acquire, for the period of ten years from the date of the judgment.
Code, section 2882. In construing the statutes of this state 1 The word ‘land, ’ and 104 phrases ‘real estate’ and ‘real property,’ include lands, tenements, hereditaments, and all legal rights thereto, and interests therein, equitable as well as legal.” Id., section 45, subdivision 8. Under these provisions the interests of heirs not in possession, but in whom the title to real estate is vested, may be seized and sold under execution. See 1 Freem.
Ex’ns, sections 178, 183; Moore v. Littel, 41 N. Y. 66; Woodgate v. Fleet, 44 N. Y. 1; Dodge v. Stevens, 105 N. Y. 588, 12 N. E. Rep. 759; Arzbacher v. Mayer, 53 Wis. 388, 10 N. W. Rep. 440. It is the policy of our law not to exempt-homesteads from sale on execution to satisfy debts contracted before the homesteads were acquired. Code, section 1992.
The interest derived by plaintiff from her' deceased daughter was subject to execution while owned by the daughter, and was not merged in the estate already possessed by the plaintiff, but remains saparate and distinct. It is not essential to the homestead right, but may be transferred without in any manner affecting it. A sheriff’s deed, issued pursuant to the sale in question, will give to the grantee no right of possession until the life estate of plaintiff shall have been terminated.
There is no reason in the policy of the law for holding the interest in question to be exempt, and • we conclude that it was subject to this sale which has been made. It follows that the demurrer was properly sustained, and that the judgment of the district court must be afeibmed.
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