to us, upon the ground of protecting her rights, and not because there was any right of his left for adjudication. In other words, as he could, if sued alone, set up the exemption, he could not, after decree upon that question, still insist for himself upon the same claim.

But assuming that she is not a necessary party, and that there has been a foreclosure of a mortgage which she did not sign, does it follow that the decree to which she is not a party estops either or both of them from claiming the exemption? Or take the very facts of this case: when the complainant married, in 1857, there was no valid encumbrance upon his homestead. His present wife, therefore, acquired the same right and interest therein as though the mortgage under which respondent claims had not been made. The invalidity was such as to effect it in the hands of any third person. And therefore while she is not a necessary party in all cases affecting the homestead (as in Sloan v. Coolbaugh, 10 Iowa, 31, or in ejectment, under ordinary circumstances, brought by or against the husband), yet in this instance, before she could be concluded and ejected from the possession of the homestead, which was never validly encumbered, she should have been made a party, and while the decree would be good as against the husband, it would not as to her. Not being good as to her, and as her right to the possession of the homestead cannot be disturbed by the sole action of the husband (we speak here of the general rule, and not of the exceptions contemplated by section 1249, and other parts of the code), ejectment would not lie to dispossess herself and family, as well as the husband, for their possession is the same, and if one cannot be dispossessed, neither can the other, according to the theory and policy of our law.

Under the testimony, it is impossible to ascertain how much was bid for the homestead, and how much for the other mortgaged property. The sale should therefore be set aside, and a new one ordered; so much of the decree, however, as sets aside the entire order of foreclosure is reversed. It is good as against the husband as to the amount found to be due, and also so far as it forecloses his interest in the mortgaged premises. The cause will be reversed and remanded, with instructions to proceed in a manner not inconsistent with this opinion.

Reversed.

CONVEYANCE OR ALIENATION OF HOMESTEADS: See Poole v. Gerrard, 65 Am. Dec. 482, note; and see Kurz v. Brusch, ante, p. 435; and Mcllenry v. Day, ante, p. 438, and notes. See the principal case cited generally as an authority on this subject in Edwards v. Sullivan, 20 Iowa, 504. In Burnap

v. Cook, 16 Iowa, 153, Morris v. Sargent, 18 Id. 100, and Barnett v. Mendenhall, 42 Id. 298, the principal case is cited to the point that in Iowa the conveyance of a homestead is of no validity unless the husband and wife concur in and sign the instrument.

WIFE IS NOT NECESSARY PARTY TO SUIT CONCERNING HOMESTEAD, but unless she be joined, the judgment would not conclude her, however it might affect her husband: Burnap v. Cook, 16 Iowa, 158; Chase v. Abbott, 20 Id. 160; Oleson v. Bullard, 40 Id. 14, all citing the principal case.

THORN V. THORN.

[14 IOWA, 49.]

JOINT TENANT OR TENANT IN COMMON MAY CLAIM HOMESTEAD PRIVILEGE against his co-tenants in the undivided premises.

HOMESTEAD NOT WITHIN TOWN PLAT MUST NOT EMBRACE MORE THAN FORTY ACRES; still, if when thus limited its value is less than five hundred dol. lars, it may be enlarged till its value reaches that amount.

ACTION of right to recover the undivided one fourth of certain lands. The action is based upon the following agreed statement of facts: The plaintiff has the legal title to all of the lands except what the defendant claims as a homestead. The plaintiff purchased the same at sheriff's sale, on execution. against the defendant; and at that time the defendant had one undivided fourth interest in all the lands. Prior to this, defendant had held the legal title to all the land, and while he was so holding and was in possession thereof by himself and family, the plaintiff instituted a proceeding in chancery against him, in which it was decreed that the defendant held the title to one undivided fourth of the lands, and the plaintiff the title to the undivided residue. During all this time, the defendant was the head of a family, and occupied, and still continues to occupy, the land in question claimed by him as his homestead, and his interest therein is still an undivided fourth interest. On these facts the defendant claimed a homestead of sixty acres, including his house, as the value thereof did not exceed five hundred dollars. It was also agreed by the parties that the controversy involved but two questions, which are contained in the opinion. Upon the facts stated, the court allowed the defendant his homestead of sixty acres, as claimed, and the plaintiff appealed.

Grant and Smith, for the appellant.

Spicer and Pratt, for the appellee.

By Court, LowE, J. It will be noticed that by the agree ment of the parties, the court below was limited in its decision upon the facts stated, first, to the abstract question whether the defendant was entitled to claim exempt from execution sale a homestead in an undivided tract of land, in which other parties have an undivided interest, as tenants in common; if so, then, secondly, whether the defendant can claim more than forty acres as a homestead.

This last proposition is very clearly settled in the affirmative by section 2284, Revision of 1860, to the effect that if the homestead is not within a town plat, it must not embrace in aggregate more than forty acres; nevertheless, if, when thus limited, its value is less than five hundred dollars, it may be enlarged till its value reaches that amount.

In regard to the first proposition, it does not necessarily include the question whether a tenant in common can set up the defense of a homestead in an action of right, without an appeal to the chancery side of the docket, to have the same recognized and set apart as in cases of partition. Neither the agreement of the parties nor the pleadings raised the question as to the proper method or proceeding of having a homestead of a joint tenant set apart or protected. It is true, the plaintiffs, by their demurrer to defendant's plea, did raise such a question, but waived it by replication and subsequent stipulation making and agreeing upon a particular issue upon which they went to trial. In this condition of the record, it is not competent for the appellant to present to this court for the first time questions which were not passed upon or brought to the consideration of the court below.

We proceed, therefore, to consider briefly the question whether a joint tenant can claim under the statute of this state the homestead privilege against his co-tenants. Why not? The first section of the homestead law exempts from judicial sale the homestead of every head of a family, when there is no special declaration of the statute to the contrary. The only exceptions or declarations to the contrary are to be found in sections 2280, 2281. Joint tenancy is not one of these. How this homestead privilege is to be secured to the party claiming it, as a tenant in common with others, is altogether a different question, but not before us for determination.

The undivided one fourth of the lands in question was about ninety acres. The amount claimed by defendant as a homestead was so much less than this, and located in such a form as not to affect materially the value and form of the remaining lands, that we suppose the plaintiffs were content with the division as made and claimed by defendant, provided he was entitled to a homestead at all under the circumstances, and hence the submission of the question in the particular form specified.

The appellant, however, to sustain his position that a homestead cannot be taken out of and identified upon land held in common, cites Wolf v. Fleischacker, 5 Cal. 244 [63 Am. Dec. 121], which holds this language: "The statute did not contemplate that homesteads should be carved out of land held in joint tenancy, or tenancy in common, since it has provided no mode for their separation and ascertainment." A similar ruling was made in Reynolds v. Pixley, 6 Cal. 165.

But can such a reason be rendered in view of the provisions of our statutes?

Suppose the defendant, before his undivided interest was attempted to be extinguished by levy and sale, had filed a petition, setting forth in connection therewith his homestead right, and asking that in the petition it should be respected and secured to him, could it not have been done without diminishing or interfering with the just rights of his co-tenants? If the land should be found divisible without prejudice to the parties, it is competent for the referees to allot the shares to their respective owners, without having the samedrawn, etc. Section 3617 of the Revision of 1860 declares that for good and sufficient reasons offered to the court, the referees may be directed to allot particular portions of the land to particular individuals. Under the discretion and power given to the referees by this section through the court, we do not see why the homestead may not be awarded to the proper owner or tenant without the slightest detriment to his co-tenants. Independently of any homestead right, it has been held by some courts that where one of the joint tenants had made valuable improvements, that on partition subsequently made he would be entitled to that part on which improvements had been made, or to compensation: Robinson v. McDonald, 11 Tex. 385 [62 Am. Dec. 480].

Such a ruling is founded in obvious justice and reason. The homestead right is derived alone from the statute, but cannot

be claimed and enforced by one tenant in common to the detriment of his co-tenants. Hence if he should happen to have erected and occupied a homestead on a piece of land which could not be partitioned without great prejudice to his cotenants, it would have to be sold; but in that event the court would see that the value of the homestead and improvements, distinct from the land, would be secured to the party at whose expense and labor they had been made. From this last suggestion it will readily be perceived that the manner of recognizing and setting apart a homestead as it was done in the case at bar is liable to very great abuse, sometimes wholly impracticable, and often would result prejudicially to the rights of the other co-tenants. And in affirming this case we do not mean to sanction it as a precedent to be followed. On the other hand, we think it ought not to be followed or adopted as a rule. When two or more persons hold undivided interests in land, their interests can be separated only in one of two ways, either by an amicable partition in releasing to each other, or by statutory proceeding in partition. If they adopt this latter course, it cannot be united with any other action: Sec. 4178, Revision of 1860. Nevertheless such an action of right, if a joint tenant desires to set up a homestead by way of defense, we know no reason why he should not ask the court to suspend the proceeding in that case until the partics shall interplead as in partition cases, and have his homestead duly ascertained and allotted to him in the manner above suggested, if practicable. When this is done, he will be in a condition to make his homestead defense available in the action of right. If it should turn out that no partition could be made without great prejudice to the parties interested, then his defense to the action of law would fall to the ground, and he would be compelled to accept in money such compensation for his homestead as the court and referees might, under all the circumstances, award to him.

Although the proceedings in this case were irregular, we do not interfere with them; we are not required by the record to settle any question of procedure, but simply a principle or right, and this we determine, as the court below did, in favor of the defendant, and therefore the judgment is affirmed.

URBAN AND RURAL HOMESTEADS: See Pryor v. Stone, 70 Am. Dec. 341, and note 353.

UNDIVIDED INTERESTS IN LANDS, WHETHER HOMESTEAD RIGHTS CAN Ar tach to: This subject is treated in the note to Wolf v. Fleischacker, 63 Am.