Wright, 0. J.
The decision of this case involves the? construction of several provisions of chapter 81. of the Codé. These provisions are substantially as follows: The homestead must embrace the house used as a home by the owner thereof. It may contain one or more lots or tracts of land, with the buildings thereon, and other appurtenances; but if within a town plat, it must not exceed one half acre in extent If when thus limited, its value is less than five hundred dollars, it may be enlarged until it reaches' that value. It is not to embrace more than one dwelling-house, .nor any other buildings, except such as are properly appur- - tenant to the homestead as such; and a shop situated thereon, and really used and occupied by the owner in the prosecu- . tion of his own ordinary business, not exceeding in value three hundred dollars, may be appurtenant to such homestead. The owner may select his own homestead, and cause it to be marked out, platted and recorded, but a failure to-do this, does not leave it liable; that duty, in case of such failure by husband and wife, devolving on the officer having ah execution against such owner. Where a disagree[372]*372ipent arises between such owner and any person adversely interested, as to whether any land or buildings are properly a part of the homestead, such controversy is to be submitted to referees selected by the sheriff of the proper county. These referees are to examine and ascertain all the facts in the case, and report the same, with their opinion thereon, to the- next term of the District Court. When sufficiently possessed of the facts, the court shall make its decision, and may direct the homestead to be marked off anew, and may take any other step in the premises, which in its discretion it may deem proper for attaining the objects of said statute.
Under these provisions, appellants claim that the half lot, with the entire building thereon erected, is subject to their execution; but if this is not true, that at least so much of said building is liable, as is not used as a home by the defendant. On the other hand, appellee insists that the entire premises constitute his homestead, .within the meaning of this chapter of the Code, and are therefore exempt. We .are of opinion, from the facts before us, that a portion of this property is exempt, and a portion liable to. plaintiff’s execution; and that, therefore, neither of the extreme grounds .assumed by the respective parties, can be maintained. We .think that the plain language of the Code, exempting the homestead, warrants this conclusion, and reason and justice would certainly seem to require, that it should be so. The facts reported to the District Court by the referees, do not present the case in so clear a light as could be desired, in. .order to arrive at a conclusion in all respects satisfactory. Such obscurity relates more particularly to the second and third stories of the building. In one part of the report, it is stated that the upper stories have been occupied by appellee as a dwelling since 1852, and yet they inform us that portions of the second and third floors were used for two or three years for other purposes; that said floors are used and occupied now by appellee and one Crabb, (but which by McCormick and which by Crabb is not shown;) and, finally, it-is stated that, in the opinion of the referees, the cellar and first floor were designed “ for a business house, and the sec[373]*373ond and third floors for a family residence, as now occupied.” From this statement of the facts, we cannot say that the second and third stories are liable. • It is evident that one, if not both floors, are used and occupied by appellee as a home or a residence. When an execution defendant shall use a particular building as a home, the whole of such building, in ease of controversy and disagreement, will be presumed to constitute and be a part of the homestead, until it is shown by the party adversely interested, that some specific portion is not of the homestead character, and therefore not exempt. Governed by this rule, we need only say, that it does not satisfactorily appear that the second and third floors are not used by the defendant as a home; and we cannot, therefore, conclude that any portion of either is liable. The first floor and cellar, we think, are clearly liable to plaintiffs’ execution. Neither from the statement of facts, nor the opinion of the referees, does it appear that these parts of the building are used as a home by the owner, nor that they are properly appurtenant to the homestead as such; nor, finally, that they are used and occupied as a shop by such owner in the prosecution of his own ordinary business; on the contrary, every such claim is expressly negatived by such report. The only reasonable ground for claiming that these portions of the building are also exempt, is to be found in the fact, that they are parts of the same house, portions of which are exempt; and the further consideration, that difficulties may arise in settling and determining the respective rights of the purchaser under the execution and the owner and occupant of the homestead.
Both of these objections, we think, may be readily answered. Under the Code, the homestead embraces the house used as a home. “ 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 in — -a place for the family.” Charless & Blow v. Lamberson, 1 Iowa, 435. And if under the same roof with the homestead, as thus defined, there shall be a floor or floors, room or rooms, which are not thus used, they are no more exempt than if under another roof, [374]*374or on another and different portion of the Tot. A defend, ant cannot, by calling a house his homestead, make it such. He cannot, by occupying or using one room in a building containing forty, exempt the entire premises. Neither can he, 'by using all the rooms of the second and third stories as a homestead, exempt from liability the storerooms that may be below, but which have no kind of connection with the homestead as such. What particular pail; of a building is, in fact, used as the homestead — as the place for the family— as the house — is, as a general thing, easily ascertained. It is such ¡Darts as are thus used in good faith, that the law designs to ex'empt. The parts are the “house” within the meaning of the section of the Code, which provides that “ the homestead must embrace the house used as a home by the owner thereof.” But it is not to embrace all parts of a building which _ are not used as a home.. All such parts, not thus used, are no more included within tbe homestead borne, tban if they were in different buildings. Those portions used as a borne, when-ascertained, are to be treated as a bouse, having a separate locality, disconnected from tbe other parts of tbe building. And while, as a general rule, it may be true that the term house, includes an entire building, yet within the meaning of this chapter, it is to be so construed as to carry out the object and the purpose of the law, so as to give the claimant his homestead, and not stores, shops, and rooms, which are never used by the family, or for a home,, or any part of it. In onr opinion, it was never the intention of the law-making power to exempt from execution an entire building or house, for whatever used, because some portion of it was used by tbe owner as bis homestead. So long as the building shall come within the meaning of a homestead, as defined by the Code, the value of it is not limited", though the extent of the ground is. But when not within this definition, it is liable, whatever its value.
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Wright, 0. J.
The decision of this case involves the? construction of several provisions of chapter 81. of the Codé. These provisions are substantially as follows: The homestead must embrace the house used as a home by the owner thereof. It may contain one or more lots or tracts of land, with the buildings thereon, and other appurtenances; but if within a town plat, it must not exceed one half acre in extent If when thus limited, its value is less than five hundred dollars, it may be enlarged until it reaches' that value. It is not to embrace more than one dwelling-house, .nor any other buildings, except such as are properly appur- - tenant to the homestead as such; and a shop situated thereon, and really used and occupied by the owner in the prosecu- . tion of his own ordinary business, not exceeding in value three hundred dollars, may be appurtenant to such homestead. The owner may select his own homestead, and cause it to be marked out, platted and recorded, but a failure to-do this, does not leave it liable; that duty, in case of such failure by husband and wife, devolving on the officer having ah execution against such owner. Where a disagree[372]*372ipent arises between such owner and any person adversely interested, as to whether any land or buildings are properly a part of the homestead, such controversy is to be submitted to referees selected by the sheriff of the proper county. These referees are to examine and ascertain all the facts in the case, and report the same, with their opinion thereon, to the- next term of the District Court. When sufficiently possessed of the facts, the court shall make its decision, and may direct the homestead to be marked off anew, and may take any other step in the premises, which in its discretion it may deem proper for attaining the objects of said statute.
Under these provisions, appellants claim that the half lot, with the entire building thereon erected, is subject to their execution; but if this is not true, that at least so much of said building is liable, as is not used as a home by the defendant. On the other hand, appellee insists that the entire premises constitute his homestead, .within the meaning of this chapter of the Code, and are therefore exempt. We .are of opinion, from the facts before us, that a portion of this property is exempt, and a portion liable to. plaintiff’s execution; and that, therefore, neither of the extreme grounds .assumed by the respective parties, can be maintained. We .think that the plain language of the Code, exempting the homestead, warrants this conclusion, and reason and justice would certainly seem to require, that it should be so. The facts reported to the District Court by the referees, do not present the case in so clear a light as could be desired, in. .order to arrive at a conclusion in all respects satisfactory. Such obscurity relates more particularly to the second and third stories of the building. In one part of the report, it is stated that the upper stories have been occupied by appellee as a dwelling since 1852, and yet they inform us that portions of the second and third floors were used for two or three years for other purposes; that said floors are used and occupied now by appellee and one Crabb, (but which by McCormick and which by Crabb is not shown;) and, finally, it-is stated that, in the opinion of the referees, the cellar and first floor were designed “ for a business house, and the sec[373]*373ond and third floors for a family residence, as now occupied.” From this statement of the facts, we cannot say that the second and third stories are liable. • It is evident that one, if not both floors, are used and occupied by appellee as a home or a residence. When an execution defendant shall use a particular building as a home, the whole of such building, in ease of controversy and disagreement, will be presumed to constitute and be a part of the homestead, until it is shown by the party adversely interested, that some specific portion is not of the homestead character, and therefore not exempt. Governed by this rule, we need only say, that it does not satisfactorily appear that the second and third floors are not used by the defendant as a home; and we cannot, therefore, conclude that any portion of either is liable. The first floor and cellar, we think, are clearly liable to plaintiffs’ execution. Neither from the statement of facts, nor the opinion of the referees, does it appear that these parts of the building are used as a home by the owner, nor that they are properly appurtenant to the homestead as such; nor, finally, that they are used and occupied as a shop by such owner in the prosecution of his own ordinary business; on the contrary, every such claim is expressly negatived by such report. The only reasonable ground for claiming that these portions of the building are also exempt, is to be found in the fact, that they are parts of the same house, portions of which are exempt; and the further consideration, that difficulties may arise in settling and determining the respective rights of the purchaser under the execution and the owner and occupant of the homestead.
Both of these objections, we think, may be readily answered. Under the Code, the homestead embraces the house used as a home. “ 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 in — -a place for the family.” Charless & Blow v. Lamberson, 1 Iowa, 435. And if under the same roof with the homestead, as thus defined, there shall be a floor or floors, room or rooms, which are not thus used, they are no more exempt than if under another roof, [374]*374or on another and different portion of the Tot. A defend, ant cannot, by calling a house his homestead, make it such. He cannot, by occupying or using one room in a building containing forty, exempt the entire premises. Neither can he, 'by using all the rooms of the second and third stories as a homestead, exempt from liability the storerooms that may be below, but which have no kind of connection with the homestead as such. What particular pail; of a building is, in fact, used as the homestead — as the place for the family— as the house — is, as a general thing, easily ascertained. It is such ¡Darts as are thus used in good faith, that the law designs to ex'empt. The parts are the “house” within the meaning of the section of the Code, which provides that “ the homestead must embrace the house used as a home by the owner thereof.” But it is not to embrace all parts of a building which _ are not used as a home.. All such parts, not thus used, are no more included within tbe homestead borne, tban if they were in different buildings. Those portions used as a borne, when-ascertained, are to be treated as a bouse, having a separate locality, disconnected from tbe other parts of tbe building. And while, as a general rule, it may be true that the term house, includes an entire building, yet within the meaning of this chapter, it is to be so construed as to carry out the object and the purpose of the law, so as to give the claimant his homestead, and not stores, shops, and rooms, which are never used by the family, or for a home,, or any part of it. In onr opinion, it was never the intention of the law-making power to exempt from execution an entire building or house, for whatever used, because some portion of it was used by tbe owner as bis homestead. So long as the building shall come within the meaning of a homestead, as defined by the Code, the value of it is not limited", though the extent of the ground is. But when not within this definition, it is liable, whatever its value. And if a portion of a building shall come within this definition, and a portion not, then a portion may he exempt, and the other not. The object of the law is to protect the home and preserve it for the family, and not shops. [375]*375stores, 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 to encourage fraud; and this view of the ease sufficiently disposes of one position assumed by appellant, that inasmuch as appellee had made his home, or claimed his homestead, iu a building, a portion of which is liable, he thereby forfeits his right to elaim any part of the building as exempt. "We do not think that the use made of the other portions of the building, can make that liable which would otherwise "be exempt, any more than tbe use of'a part of.it as a homestead would operate to make it all, within the meaning of the law — the house used as a home; or to bring it all within the exemption.
The seeond objection, is one arising from a supposed inconvenience or difficulty in settling the rights of the respective owners. But why any more inconvenience than if the parties had voluntarily or by agreement thus settled their respective interests ? It is not very unusual, certainly, for one person to own the soil and the first floor of a building, and another the second, and perhaps the third story of tbe same building. So, one may own the soil, and other parties each own the different floors; and instances have doubtlessly occurred, where tbe owners of tbe soil had leased or conveyed to another, tbe right to build the first story and occupy the same, and by agreement acquired tbe right to build on the same walls other stories, tó be owned and occupied by himself. Tbe respective rights 5f the parties, under such circumstances, when not controlled by contract, are easily settled by legal rules. And tbe same rules which obtain when the parties become voluntarily thus related, must govern when the relation is an involuntary one. We must not refer in detail to their respective rights and obligations, nor do more than to say generally, that each is to use his own, so as to do as little injury to the property of the other as possible. The title to the soil remains, in the case before us, in the defendant ©r ossner of. the .homestead. The [376]*376purchaser under the execution, acquires the right to the possession of the first floor and cellar, and every part of each, which right is to continue so long as the same is tenantable. He may rent it, and in every respect use and enjoy it as his own property, having regard to the rights of the persons owning and occupying the remaining portion of the building. He has a right to protect his walls; to make all necessary repairs ; and to all needful means of access to his said premises. The owner or .occupant of the upper stories is to be in no manner disturbed in the possession of said premises; has a right to pass and repass by the ordinary and constructed passage or stairway, so as to enjoy and use said homestead; but must do nothing to endanger the property of the purchaser under the execution, nor to unnecessarily impair his rights. This is all we deem it necessary to 'say at present, in reference to the legal rights and obligations resulting from this somewhat unusual division of this property. Guided by these suggestions or rules, there need be no reasonable ground for future trouble or difficulty.
Judgment reversed.
StocKTOir, J., dissenting.