
    Alley v. Bay, et al.
    
    1. Conveyance or the hojiestead. The conveyance of a homestead is of no validity unless the husband and "wife (if the owner is a married man) concur in and sign the conveyance.
    2. Same: mortgage. A junior mortgage on a homestead, executed by the husband and wife, will prevail over a senior mortgage executed by the husband alone.
    8. Homestead : how ascertained. The property occupied by the parties will be regarded and treated as the homestead when both fail to select the property they wish to have set apart as such.
    4. Foreclosure: deeense. In an action to forcclese a senior mortgage, executed by the husband, an answer by a junior mortgagee, alleging that the mortgage property was the homestead of the mortgagor when the mortgage was executed, and that the wife did not join in the execution of the same, constitutes a good defense to the action, even when the mortgagor makes no defense.
    
      Appeal from Johnson District Court.
    
    Monday October 31.
    Bay executed to Alley a mortgage on a lot in Iowa City, in which mortgage his wife did not join. Afterward, in 1856, he, with his wife, executed another to the assignor of Luther Dickey. After this, in 1858, Alley filed his bill to foreclose, making the wife a party, “that she may show cause, if any, why the petitioner should not hare the relief sought.” Bay and wife made no defense, and she showed no cause against the petition. Dickey & Morrison filed a motion to be made defendants, and were permitted, when they made answer showing the mortgage made to Dickey’s assignor, that he had brought his bill for a foreclosure, that this had been decreed, and that the lot had been sold under it, and purchased by Dickey & Morrison. They further ayer that the lot mortgaged was the homestead of Bay, that he was a married man and the head of a family, and that his wife did not join in the mortgage to the petitioner. Upon these facts they claim that the deed to Alley was invalid, of no force, and that that to Dickey takes precedence. The petitioner demurred, and Ms position was sustained by the court, and a decree was rendered in Ms favor. From tMs, Dickey & Morrison appeal.
    
      Ciarle ^¿Henley, for tbe appellants.
    
      Hampton, and Ciarle &¡ Bro., for tbe appellee.
   Woodwakd, J. —

Tbe answer alleges all tbe qualities and circumstances requisite to constitute tbe lot a homestead5 and that Bay and bis family occupies it, and that it is bis homestead. Tbe statute, Code, section 1247, enacts that a conveyance by tbe owner is of no validity unless tbe husband and wife (if tbe owner is a married man) concur in and sign such conveyance. Tbe principal argument against tbe position of tbe respondents, is tbe fact that neither Bay nor bis wife claim or ask for tbe homestead. But section 1254 provides that, in case of tbe failure of both these to select tbe homestead, the officer having an execution shall cause it to be marked, platted and recorded. If they have another place wMcb they prefer as a homestead, they must do some act to cause this to be elected, otherwise that which they occupy at tbe time will be treated as such.

Besides stating tbe circumstances going to constitute a homestead, and averring them to exist in this case, tbe answer alleges that tMs is tbe homestead of Bay, and tbe demurrer admits it. Tbe statute says tbe conveyance of one without tbe concurrence of tbe other, shall be of no validity. If it bad said that it should not be valid against the husband or wife, or their heirs, there would have been more support for tbe plaintiff’s position. Tbe position of defendant is supported by Richards v. Chace, 2 Gray 383; Williams v. Starr, 5 Wis. 534; and Jenny v. Gray, 5 Ohio State R. 45.

It appears to us more consistent, with the terms and object of tbe statute to bold tbe conveyance from Bay to Alley as actually invalid. Therefore tbe decree of tbe District Court is reversed, with leave to tbe petetitioner to answer over. ■ j  