
    Mayfield v. Maasden et al.
    1. Homestead: part of building exempt as. Defendant owned a two story brick building twenty by eighty feet, with basement, and the part of the lot on which it was built. The front room of the basement had been (but not since the rendition of plaintiff’s judgment) used as a barber shop. The first story above the basement, except the stairway and two small rooms constructed by temporary partitions, was occupied as a business room. Defendants with their family lived in the building, and occupied the whole second story above the basement, and had the sole use of the stairway, and used to some extent for storage the two temporary rooms above referred to on the first floor above the basement:— Held that the whole second story, the stairway, the basement and the ground constituted defendant’s homestead, but that the first story, except the stairway was subject to execution.
    
      Appeal from Marion District Court.
    
    Wednesday, October 18.
    Action in equity to establish the lien of a judgment upon certain premises, and to subject them to the payment of the judgment. The defendants, L. Maasden and Marie E. Maasden, aver that the premises constitute their homestead, and that as such they are exempt from execution.'
    The premises in question consist of a fraction of a lot in the city of Pella, on which is a two story brick building twenty-five by eighty feet with a basement. The front room in the basement was at one time occupied as a barber shop. The defendants’ family lives in the building occupying the whole second story above the basement. In the first story above the basement two small rooms were constructed by partitions about seven feet high, and were used to some extent by the family for storage. The room in other respects is occupied as a business room, to-wit: a grocery store, saloon and restaurant. The building is a section of a block, and appears to have been built for business purposes. Stairs lead from the street to the second or residence story, and the stairway is taken out of a corner of the business- room, but. it is enclosed, and there is no access to the second story directly from the business room.
    Upon these facts, the court held that the basement room which was at one time occupied as a barber shop, and the first story were not exempt; and that there were exempt the remainder of the building and the ground upon which the same is situated, and entered a decree accordingly. The defendants appeal.
    
      Bolton (& MeGoy, for appellants.
    
      Lafferty ds Johnson, for appellee.
   Adams, J.

The defendants insist that the case comes within the rule in Wright & Co. v. Ditzler, 54 Iowa, 620. In that case the building was held exempt as a homestead, notwithstanding the lower story was occupied as a store. It was thought to be distinguishable from Rhodes, Pegram, & Co. v. McCormick, 4 Iowa, 368, on account of the size and character of the building and the purpose for which it was originally intended. Some importance also was attached to the fact, that access to the second or residence story was had through the lower or business story, and through the business room itself, which rendered a sale of the lower story impossible, without a positive interference with the defendant’s homestead rights. The case at bar is different, and falls more nearly, we think, within Rhodes, Pegram & Co. v. McCormick, and the doctrine of that case we think must govern. We are aware that the decision has been criticised, and some doubt may exist in regard to its correctness, but it has stood so long, that we should not be justified in overruling it, even if we were otherwise disposed to do so.

We have to say, however, that we do not think that the decree can be wholly sustained. .The sale of the entire lower story would include the stairway by which the residence story is reached from the street. As the stairway is partitioned off, we think that so much of the lower story as ij occupied by it is exempt.'' It appears to us, also, tliat tbe whole basement is exempt. No part appears to have been occupied for business since tbe rendition of tbe judgment, and all not occupied for business we think should be deemed to be included in the homestead.

As to the small apartments constructed in the first story by partitions about seven feet high, we have to say that they seem to constitute essentially a part of the room out of which they are carved, which room, as we hold, being mainly a business room, is not exempt. "We see no occasion for any modification of the decree, except in regard to the stairway and the so called barber sbop. The exemption, we think, should be extended so far as to embrace them with the other parts held exempt.

Modified and Affirmed.  