dissenting. — I dissent from the opinion of the majority of the court in this cause, and will briefly give my reasons for such dissent. I am of opinion that.the exemption -intended to be provided for by the statute, (Code, ch. 81,) whether the homestead be within or without a town plat," has reference to the soil or ground, rather than to buildings which may be erected oh it. I draw this conclusion from the language of the statute, where it defines what shall be exempt as a homestead from judicial sale. In a town, it must not exceed half an acre, and may contain one or more lots, “ with the-buildings thereon,” and must embrace “-the house used as a home by the owner thereof.” It must not embrace more than one dwelling-house, nor any other buildings, except such as are properly appurtenant to the homestead as such. Code,. §§ 1250, 1253. I conclude from these sections, that it is the ground that is primarily intended to be exempted, and not the buildings that may *377be erected on it. Tbe statute contemplates that the head of the family entitled to a homestead exempt from judicial sale, shall select the same, cause it to be marked off by fixed and visible monuments, and a plat of it recorded by the recorder of deeds in the Homestead Book, kept for that purpose. To this ground, so selected, platted, and marked out, the statute refers when it speaks of the “homestead.” It is to embrace. “ the house used as a home ;” it may “ contain” one or more lots of ground ; it must not “ exceed half an acre;” it must not embrace “more than one dwelling-house,” &c. The consequences to the party, who, not conforming to the provisions of the statute, seeks to have exempted as his homestead, more than half an acre, or more than one dwelling-house, or a shop or other building not appurtenant to the homestead as such, or worth more than three hundred dollars, are to be deduced from the plain language of the statute. There can be no doubt but that all such excess is subject to sale on execution, and the liability extends not merely to the building ascertained to be of the excess, but to the soil on which it stands, whether part of the exempt half acre or not. It would be a very lame conclusion to hold, that only the building was liable to sale, and that the ground on which it stood was exempt. This much, I think, is clearly provided for by the statute. But if the defendant converts to another use, a portion of the building situated on his homestead, and occupied as his home; or if, as in this case, he builds a house on his lot, intended partly as his dwelling or home, and partly as a store-house, to be used by himself, or' rented out, as his circumstances or necessities may require, not only is there no express provision of law subjecting the property, or any part of it, to the creditor’s demand; but, in my opinion, no such inference can fairly be drawn from the language of the statute, and no such consequence can fairly result from the facts, as that the part of the building so used as a shop, or so let out for hire to others, is subjected to the creditor’s execution. It is a sufficient objection to say, that the law in such case does not so provide, and I am not for supplying its omissions or defects. *378In this case, there has been .but one building — one house— erected on the lot of thirty feet front. There can, in no sense,' be said to be two buildings or two tenements. The lower story is used as a store-house or shop, and the cellar is rented with it. McCormick, with his family, occupies the upper stories, or part of them, as his dwelling or home. There is no claim that the premises exceed half an acre in quantity, or that they do not embrace the bouse.used by McCormick as a home, or that they embrace more than one dwelling-house. To bold that because he lets out the lower stories and cellar to a tenant, the part so let out becomes liable to the creditor’s demand, is to my mind a less reasonable conclusion, than it would be to hold that for such reason the whole building, with the ground on which it stands, is so liable. If the party bad converted his house into a boarding or lodging-house; if he had covered a half acre with an immense hotel for the entertainment of sojourners and travelers, so long as he continues his home in the building, I believe it is not claimed but that tbe whole building and premises would be exempt from sale on execution. Yet it is difficult to perceive, that the party-who so turns his dwelling into a lodging-house or tavern, does not let it out for hire, in quite as obvious a sense, as he does who lets out the lower story-and cellar for a shop or business house.
I am further of opinion, that there is no authority to be derived from chap. 81 of tbe Code, nor -is there any rule or precedent to be found elsewhere, for subjecting part of a building, as tbe cellar and first story in this case, to sale on execution, and conveying a title to the purchaser; and at the same time holding that the fee simple of the soil on which the building stands, remains in the judgment debtor, as his homestead. Whoever owns the soil, owns whatever is upon it. Any cutting up of the estate, or parceling out the ownership and possession of different parts of a building to different persons, while tbe soil belongs to tbe judgment debtor, must be tbe result of consent and agreement, wherever it occurs. It cannot be the enforced result of compulsory proceedings on execution, by a judgment creditor against an *379,1111 willing debtor. The law does not compel parti'es to make agreements; nor, in a case like this, does it make an agreement for them. That a purchaser at sheriff’s sale shall become the owner of the cellar and first story of the building, while the ground on which it stands, and the second and third stories, shall belong to the judgment debtor, is an anomaly yet to be witnessed in our judicial history.
The owner may undoubtedly let out to tenants a part of his dwelling-house — different portions or apartments of the same building, — and the tenant or renter’will b.e protected in the possession and enjoyment of his particular room or apartment, while the remainder of the building, with the soil on which it stands, shall belong to others. Such instances, however, as we have remarked, are the result of the agreement of parties, and are entered into, by consent, and for a consideration. The estate cannot be cut up, so as to give to the defendant the fee simple in the soil, and to the purchaser at sheriff’s sale, the fee simple in the building, or part of it. There is no precedent for so parceling out the title of the premises- — for so separating the title of the house from the title of the soil on which it stands, as that whilst the defendant in execution is the owner of both, a purchaser at sheriff’s sale under execution, may acquire title to the building only. If there iá anything in the character of tbe building, or any part of it, to take from it its quality of a homestead, and render it liable to execution, the consequence must extend to the ground also on which it stands. As it is, in my opinion, the ground that is characterized and exempted ás tbe homestead, so it must be tbe ground, and not tbe building, or part of it, which by being converted to some other purpose, loses its quality of exemption, and becomes subject to judicial sale. If tbe building be so constructed as to be easily divided into two tenements, and one of tbem is let out, either as a business-house or as a dwelling, I think there can he no question but that the separate tenement, so let out, loses its character as part of the homestead, and becomes liable in every sense — both the soil and *380the building — to the creditor’s demand. The party so leasing it out, will be understood as having abandoned his claim or right to include it in his homestead. In this case, there is, however, an obvious impracticability in separating the first story and cellar from the remainder of the building, and particularly in separating the right to the different stories from the right to the soil on which they stand. If the portion of the premises made liable by the decision of the court to the creditor’s execution, constituted a separate tenement, distinctly marked out, and set apart from the remainder of the homestead, in such manner as that the purchaser at sheriff’s sale might acquire a fee simple title to the whole, —the soil as well as the building — the argument ab incomenienti would lose much, if not all of its force. In such case, the defendant’s homestead might be marked off anew, and a new plat and description made and recorded. He would then be the owner not only of the ground left to him, but of all the building by which it was covered. The inconsistency would then be obviated, of holding that a piece of ground may be called his homestead, but that he does not own the building erected on it. I give full force and effect to the consideration and argument, that it is not within the spirit of the act, that the j udgment debtor should be permitted to claim exemption for his first -story and cellar, let out and used for business purpose^, any more than for any other building not appurtenant to his homestead, under another roof, or on another part of the same lot. If the statute, however, contains no plain and express direction to meet the present case, or if the judgment of the court is not the legitimate inference from its provisions as they stand, the argument should rather be addressed to the legislature, that make the laws, than to the courts, that can only construe them when made. As I do not think that the statute has made provision for a case like the present; and as the intention of the law-making power, in such case, is not to be gathered from the words of the act, I think it safer to wait until .the legislature shall speak authoritatively, rather than for the courts to indulge in a species of judicial legis*381lation, wbicb tbe facts and necessities of tbe case do not require.
In my opinion, tbe order and judgment of tbe District Court should be affirmed.