dissenting. — I dissent in this case, and without elaboration state my reasons thus: The property in controversy did not constitute the homestead of the complainant at the time of the enlargement of the limits of the city of Dubuque, under the act of 1858, p. 89, chap. 54. By the terms of this act, the land in controversy was included within the corporate limits of said city. Being thus included, if the complainant afterwards made the same his homestead, he could not claim more than one half acre as exempt. The question is very different from what it would be if the city limits had been extended after acquiring the homestead. It is not a case where the homestead is changed or curtailed in its limits by a subsequent act of a third per*520son, over which the owner had no control. The reasoning upon that hypothesis used in the majority opinion has, therefore, nothing to do with the question actually involved.
“ If within a town plat it would not exceed one half acre in extent,” is the declaration of the statute, (§ 1252). If not within the town plat then it must not, in the aggregate, embrace more than forty acres. The intention of the statute was to exempt forty acres as agricultural lands in the country, as contradistinguished from town; and one half acre in town, or such a locality as that the use of land for agricultural purposes would be impracticable. This to my mind is the plain and obvious policy and spirit of the law. This is in effect the construction given to the act of 1849, upon this subject (Helfenstien & Gore v. Cave, 3 Iowa 287,) and the language of the statute is not in this respect essentially different.
If a party has his homestead, and the limits of a city or town should be so extended as to include it, I would not say that such extention would have the effect, without, some act on his part, to lessen the extent of his exemption. Without some act on his part converting his farm, or his forty acres or less, used for agricultural purposes, into town lots, it would seem, to say the least, inequitable to say that a half acre instead of forty should be the limits of his homestead. If, however, he voluntarily selects his homestead within the corporate limits of a city or town he must take what the law gives him.
.The word “ town,” Avhen used in the statutes includes cities as well as incorporated villages, (§ 26.) By the term is meant a collection of houses, greater or less, ten or ten thousand. In this instance the property is in an incorporated city. It is therefore within the plat of a city, as defined by the act incorporating it. And it is breaking down and ignoring the great dividing line between a home*521stead in the country and town as contemplated by the statute, to say that the limit of a half acre is only to apply when the land is laid off, or platted into lots. Is it within the city, town or village, made by the owner after the limits were known and fixed? If so, the claimant is entitled to the half acre and no more, though it may not be composed of town lots.
In conclusion I may remark, that I see no injustice in the rule for which I contend, as applied to this case, for the reason that it does not appear that the premises are used by the complainant; for agricultural purposes, or any other than as an ordinary home within the limits of the city; and while I favor a liberal construction of the homestead law, so as to carry out its spirit, I can not say that it ought to have been given “ under different qualifications or conditions,” but I must accept it under just the “ considerations and circumstances ” contemplated by the law. The law intended to give a general rule, as applied to town and country; and in giving this rule an application to this case, in the manner above stated, I feel that I do the complainant no injustice, and that I carry out the letter and spirit of the statute.