In his petition for rehearing the appellant herein urges upon us very earnestly that the opinion filed herein is directly contradictory to our holding in Wertz v. Merritt, 74 Iowa 683. The Wertz case is cited in the opinion filed, but is not analyzed or discussed. There is a close similarity between the two cases so far as the pleadings are concerned. There is, however, a vital difference in the finding of facts upon which the decision is predicated in the two cases.
In the Wertz case Joseph Wertz was one of three children who survived their father. The father died intestate, seized of real estate which became the subject of partition between the heirs. One of the heirs brought a partition suit in which Joseph was named as a defendant. In such partition suit he interposed the defense that he was the absolute owner of a certain 40-acre tract described by him, pursuant to an oral agreement with his father in his lifetime; that such agreement was followed by the occupancy of said land by Joseph for a period of 20 years before his father's death; that the oral agreement was, in substance, that Joseph should pay a rental thereon to his father during the life of the father as a consideration for the agreement; that Joseph entered upon the tract and improved the same by building a house thereon and by occupying the same for 20 years. The alleged agreement was denied by the heirs. The offer of Joseph to prove the oral agreement of his father by his own testimony was objected to by the other heirs, and this court sustained the objection upon a consideration of the case on appeal. In the absence of such evidence, Joseph lacked proof, and this court held that the agreement was not proved. Partition in kind was actually decreed in the district court, and the referees awarded to Joseph 36 acres out of the disputed 40-acre tract and included his improvements *Page 556 upon such 36 acres. The partition decree confirmed his title as reported by the referees. Manifestly such title had its origin at the date of the death of the father. Merritt Brothers were judgment-creditors of Joseph. Their lien antedated the death of the father and therefore antedated the acquisition of title of Joseph as determined in the partition suit. Upon such a state of facts, this court sustained the right of the judgment-creditor to claim a lien upon the property superior to the homestead right of Joseph.
In the case at bar Lennert was permitted to prove his oral contract with his father over the objection of the judgment-creditor, on the ground that such judgment-creditor is not one who claims by, through, or under the ancestor. No objection to Lennert's testimony was offered by any heir. The finding of fact therefore in this case is vitally different from that found in the Wertz case. There is no inconsistency between the two decisions.
The petition for rehearing is accordingly overruled.