McGlothlen v. Hite

¶1i. uo'wEit:. Homestead. The ruling of the court below in holding the homestead forty acres secondarily liable was based, doubt-

¶2less, upon Wilson v. Hardesty, 48 Iowa, 515. The heirs question the correctness of the decision.

¶3*394The writer of this opinion is not entirely satisfied in regard to its correctness, but the other members of the court are. It must, therefore, be allowed to stand. This disposes of the question in regard to the homestead forty acres.

¶42. —:-. The question as to whether a widow’s distributive share, not included in a homestead, should, as between her and the heirs, be held to be primarily or secondarily liable to contribute to the payment of a mortgage conveying the property out of which her share is carved, and in the' execution of which mortgage the widow joined with her husband, was disposed of in Trowbridge v. Sypher, ante, 352. In that case such share was held to be primarily liable. The plaintiff, however, complains that if any part of her share is to be held primarily liable the precise sum to be paid by her should have been fixed.

¶5No sum as her proportionate share could have been fixed, the payment of which would have had the effect to discharge her land while any part of the mortgage debt remained unpaid. Possibly, if the pleadings had raised the question as to what sum paid by the widow should be deemed her share as between her and the heirs, the court should have determined it. But the pleadings being silent in regard to it, we cannot say that the court erred. On both appeals, the judgment is

¶6Affirmed.

¶7dissenting. — I cannot concur in the conclusions announced in the last point of the foregoing opinion. My views upon the question involved are expressed in my dissenting opinion in Trowbridge, Ex'r, v. Sypher et al., supra.