Size v. Size

24 Iowa 580

• Court: Supreme Court of Iowa
• Decided: June 3, 1868
• Status: Published

Opinion

Dillon, Cb. J.

The legal title to the homestead descended to the heirs at law, subject to the widow’s homestead and dower rights. The nature of these rights is discussed, and to some extent adjudicated, in Meyer v. Meyer, 23 Iowa, 539. And see also Burns v. Keas, 21 Iowa, 257.

The widow here claimed, that she was invested with the fee, and undertook to convey accordingly. That in such a case she does not take the fee, and of course cannot convey it, is decided by the cases just cited. The conveyance to Lytle may be operative so far as the widow’s dower third is concerned; but it will not invest him with the possessory homestead right which the widow would have had, if she had not sold and conveyed, and had remained in possession.

Lytle could not assert the homestead right of the widow to defeat the plaintiff’s demand for partition. The widow having sold and conveyed, and not continuing to possess and occupy the premises, had at that time no homestead right.

What effect a rescission of the contract with Lytle, and resumption of possession by the widow, would have in respect to the plaintiff’s rights, we need not inquire. The record makes no such case. It follows from this view, that, where the fee of the homestead is in the husband, the widow on his death does not take the fee as survivor, and that she cannot change the homestead in the manner here attempted, viz., by a sale and conveyance on her own motion.

Perhaps a court of chancery might authorize such change upon proper application, it taking care to see that the title to the new homestead shall be held the same as the old. The judgment below is reversed, and the cause remanded.

Reversed.