withdrawal of the first, no substitution, no leave to file an additional or further answer, nothing indicating that the several answers were to be treated as one, but the cause was tried upon the issues thus made up, though clearly conflicting and inconsistent. Under such circumstances, we regard it very doubtful whether defendants were not estopped from denying the authority for issuing the writ. But holding as we do above, it is not necessary to pass upon this view of the case. Reversed.

VARIANCE BETWEEN EXECUTION AND JUDGMENT: See extensive note to Graham v. Price, 13 Am. Dec. 201, 203; Sprott v. Reid, 56 Id. 549, and note 556. Immaterial variances will not affect the validity of the writ, and if, when viewed in the light of a common understanding, all the requisites substantially appear therein, it will be sufficient: Burdick v. Shigley, 30 Iowa, 65, citing the principal case. The principal case is also cited in Cooley v. Brayton, 16 Id. 15, where the defect, which was held to be immaterial, consisted merely of clerical misprision in omitting to fill a blank with the amount of the execution, such sum already appearing twice therein; and in Cunningham ▼. Felker, 26 Id. 119, and Williams v. Brown, 28 Id. 249, where slight vari ance between the sums named in the judgment and execution were held to be immaterial.

KURZ v. Brusch.

[13 IOWA, 871.]

HOMESTEAD Embraces Lot and House Used as HOME, together with build. ings appurtenant thereto, including those used and occupied by the owner in the prosecution of his ordinary business, but not such buildings as are rented to others and yield a revenue to the owner.

OCCUPATION OF BUILDING AS HOMESTEAD AFTER EXECUTION OF TRUST DEED

conveying the same, in which deed the wife did not concur, will not change the status of the parties so as to exempt the property as a homestead from the operation of such deed.

ACTION to obtain possession of real property. Defendant, being the owner of two subdivisions of a tract, which were known as the south and south middle fifths, conveyed by trust deed to one Woodruff to secure a debt to one Ives. Under such deed the premises were sold and conveyed by the trustee to plaintiff, who commenced this action. Defendant answered, setting up the defense that the premises were his homestead. The jury found for the plaintiff for the south fifth, and that the south middle fifth was defendant's homestead Plaintiff appealed.

Bissell and Shiras, for the appellant.

E. Gottschalk, for the appellee.

By Court, WRIGHT, J. There is no controversy as to the south fifth; nor is there any as to a portion of the south middle fifth. On the north side of this, and some distance from the front, or White Street, is a one-story brick cottage, occupied by the defendant and his family at the time of making the deed, in which deed his wife did not join. As to this cottage house and such portions of the lot (the south middle fifth) as were in good faith used as appurtenant thereto, plaintiff concedes the verdict is right. But as to all other parts of that subdivision, he insists that the verdict was wrong.

The facts are simply these: There is a double brick house situated on this lot, fronting on White Street. This was never occupied by defendant as his homestead, prior to the trust deed, nor at any time prior to the commencement of this action, except about two months in the year 1859. It was rented, however, to a number of tenants, and used as shops, defendant having no possession except through such tenants. On the south half there was a planing-mill, which was rented on the 1st of May, 1857, for five years, at an annual rent of one hundred and fifty dollars.

Plaintiff now claims that as to all said south middle fifth except the brick cottage, and such portions of the lot as were in good faith used as appurtenant thereto, he was entitled to recover. In other words, he insists that the double brick house is no part of the homestead.

The principles settled and the reasoning used by this court in prior cases, bearing more or less directly upon the question here involved, must reverse this judgment.

Thus in Charless v. Lamberson, 1 Iowa, 435 [63 Am. Dec. 457], it is said: "To be the homestead it must be used, and used for the purpose designed by the law, to wit, as a home, a place to abide, a place for the family. The language of the law is clear. It is that a homestead, consisting of a certain quantity of land, and the dwelling-house thereon, and its appurtenances, owned and occupied, shall not be subject to forced sale."

In Rhodes v. McCormick, 4 Iowa, 368 [68 Am. Dec. 663], this language is used: "The object of the law is to protect the home and preserve it for the family, and not shops, stores, rooms, hotels, and office rooms, which are rented and occupied

by other persons. This construction attains the object of the code in exempting a homestead, and prevents the abuse of a law which was designed to discourage and not encourage fraud."

And so in Ackley v. Chamberlain, 16 Cal. 181 [76 Am. Dec. 516]: "A homestead is the residence of a family, is the place where the home is, and it would seem unreasonable, upon first impressions, that premises should be regarded as a homestead, unless devoted principally to such residence and home."

But aside from these cases the statute, to our minds, is clear and decisive upon this point. After providing that "the homestead must embrace the house used as a home," "and if he, the owner, has two or more houses thus used by him at different times and places, he may select which he will retain"; that "it may contain one or more lots or tracts of land with the buildings thereon, and other appurtenances,"―it then declares (Code 1851, sec. 1253): "It must not embrace more than one dwelling-house, nor any other buildings except such as are properly appurtenant to the homestead as such, but a shop or other building situated thereon, and really used and occupied by the owner in the prosecution of his own ordinary business, and not exceeding three hundred dollars in value, may be deemed appurtenant to such homestead."

This section, by the assertion of what may be as well as what shall not be considered as appurtenant to the homestead, and hence a part of it, frees the question of all difficulty. The purpose and object of the law is most clearly shown. It gives the "dwelling-house" and a shop really occupied in the prosecution of his ordinary business by the owner, but not buildings that are not thus used and occupied. The mechanic needs his shop, the physician his office, to assist him in procuring means for the maintenance and support of his family, as he needs. his dwelling. This is the theory of the statute, and he is protected in the one as much as the other. Or as is said by Hemphill, C. J., in Pryor v. Stone, 19 Tex. 371 [70 Am. Dec. 341], in giving a construction to the peculiar constitutional provisions and statutes of that state: "The exemption should not be construed as reserving merely a residence where a family may eat, drink, and sleep, but also a place where the head or members may pursue such business or avocation as may be necessary for the support and comfort of the family."

But it was never intended that other buildings, though on the same lot, buildings "not appurtenant to the homestead as

such," those not "used and occupied by the owner in the prosecution of his own ordinary business," those rented and yielding a revenue to the owner,- we say it was never intended that such should be exempt. If so, the law could be made the cloak for the most stupendous frauds. For if one such building may be exempt, so may all that could be placed upon a half-acre, if in a town, or forty acres, if in the country, without limit as to value. And thus the statute, instead of securing to the family a home where they may be sheltered, and live beyond the reach of financial misfortune and the demands of creditors, would give them property never contemplated by its letter or spirit.

The occupation of the "double brick house" after the execution of the trust deed, cannot change the legal status of the parties. Its subsequent adoption (even if there was such adoption), would not affect the validity of the deed, nor release the property from its operation: Yost v. Devault, 3 Iowa, 345 [66 Am. Dec. 92].

The cause will therefore be reversed, and remanded. So much of the south middle fifth as was in good faith actually used as appurtenant to the "cottage dwelling," at the time of the execution of the trust deed, as defined by this opinion, should be set apart to the defendant, and as to all other parts the plaintiff should have judgment.

HOMESTEADS, WHAT MAY BE EXEMPT AS: See Pryor v. Stone, 70 Am. Deo. 841, and the extensive note thereto 346-353, citing many cases, and among them the principal case; Tumlinson v. Swinney, 76 Id. 432; Ackley v. Chamberlain, Id. 516.

CONVEYANCE OR ALIENATION OF HOMESTEADS: See the note to Poole v. Ger rard, 65 Am. Dec. 482 et seq.

SUBSEQUENT ADOPTION OF REAL ESTATE AS HOMESTEAD cannot affect validity of owner's undertaking to sell and convey it, or release him from his obligations, entered into before it was made a homestead: Yost v. Devault, 66 Am. Dec. 92.

MCHENRY V. DAY.

[13 IOWA, 445.]

NEGLIGENCE OF WIFE IN EXECUTING, WITHOUT READING, TRUST DEED CONVEYING HOMESTEAD, among other property, upon the statement of her husband that it conveyed certain property mentioned, which did not include the homestead, the trustee and beneficiary having no knowledge of and being in no wise a party to this false representation, cannot be set up by her as against the innocent parties who acted in good faith in the

transaction, so as to make it the ground for relief against the conse quences of her own signature.

WIFE WILL NOT BE PERMITTED TO TAKE ADVANTAGE of her own irregular and wrongful acts in the acknowledgment of a deed against parties who, being ignorant of such acts, have loaned money upon the security thus acknowledged, but which is regular and fair on its face.

ACTION of right. The facts are stated in the opinion.

Curtis Bates, for the appellant.

M. D. McHenry, pro se.

By Court, LowE, J. The facts out of which this controversy arises are these: The defendant Day, about the twenty-seventh day of January, 1857, borrowed the sum of two thousand five hundred dollars from Messick and Robertson, of Kentucky, through their agent, William H. McHenry, of Des Moines, Iowa, to secure which the said Day and wife executed and delivered a deed of trust (naming William H. McHenry, the trustee therein) upon the following described property: The south half of lots 1 and 2, in block C, in the commissioners' addition to Fort Des Moines, Polk County, Iowa. Also lots Nos. 1, 2, 3, and 4, in block B; lots Nos. 1 and 2, in block C; lots Nos. 1, 2, 3, 4, 5, 6, 7, 9, and 10, in block D; and lots Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, in block A, situated in D. P. W. Day's addition to Fort Des Moines.

Default being made in the payment of the money, the prop erty conveyed in the deed of trust was sold by the trustee to the plaintiff as the highest bidder for the sum of $601, who brings his action of right to recover possession of the two lots first-above described. The defense set up may be stated in substance as follows: That at the time of the execution of said deed of trust, the defendants were occupying said lots as their homestead, and continued to do so up to the sale of the same by the trustee, and the institution of this suit; that Alice E. Day, the wife of D. P. W. Day, had not acknowledged said deed of trust before any officer authorized to take the acknowledgment of deeds; that the notary public, before whom said acknwledgment purports to have been taken, never presented said deed of trust to her for that purpose; that when, as a matter of fact, she did sign the same, the notary was not present; that her husband presented the deed to ner for her signature, representing at the time that it was for the lots on the hill in his own addition to the city of Fort Des Moines; that, relying upon this statement, she signed the deed without reading it; that she