- It will be noticed that by the agreement of the parties the court below was limited in its decision upon the facts stated, first: to the abstract question whether the defendant was entitled to claim exempt from execution sale, a homestead in an undivided tract of land, in which other parties have an undivided interest, as tenants in common. -If so, then, secondly: whether the defendant can claim more than forty acres as a homestead ?
This last proposition is very clearly settled in the affirmative by § 2284, Rev. of 1860, to the effect that if the homestead is not within a town plat, it must not embrace in the aggregate more than forty acres, nevertheless, if, when thus limited, its value is less than $500, it maybe enlarged till its value reaches that amount.
In regard to the first proposition, it does not necessarily include the question whether a tenant in common can set up the defense of a homestead in an action of right without an appeal to the chancery side of the docket to have the same recognized and set apart as in cases of partition. Neither the agreement of the parties, nor the pleadings raised the question as to the proper method or proceeding of having a homestead of a joint tenant set apart or protected. It is true the plaintiffs by their demurrer to defendant’s plea did raise such a question, but waived it by replication and subsequent stipulation making and agreeing upon a particular issue upon which they went to trial. Tn *54this condition of the record, it is not competent for the appellant to present to this court for the first time, questions which were not passed upon or brought to the consideration of the court below.
We proceed, therefore, to consider briefly the question whether a joint tenant can claim under the statute of this state the homestead privilege against his co-tenants. Why not ? The first section of the homestead law exempts from judicial sale the homestead of every head of a family, when there is no special declaration of the statute to the contrary. The only exceptions or declarations to the contrary are to be found in §§ 2280, 2281. Joint tenancy is not one of these. How this homestead privilege is to be secured to the party claiming it, as a tenant in common with others, is altogether a different question, but not before us for determination.
The undivided one-fourth of the lands in question was about ninety acres. The amount claimed by defendant as a homestead was so much less than this, and located in such a form as not to affect materially the value and form of the remaining lands, that we suppose the plaintiffs were content with the division as made and claimed by defendant, provided he was entitled to a homestead at all under the circumstances, and hence the submission of the question in the particular form specified.
The appellant, however, to sustain his position that a homestead cannot be taken out of and identified upon land held in common, cites 5 California, 244, which holds this language: “ The statute did not contemplate that homesteads should'he carved out of land, held in joint tenancy, or tenancy in common, since it has provided no mode for their separation and ascertainment.” A similar ruling was made in 6 California, 165. ■
But can such a reason be rendered in view of the provisions of our statutes ?
*55Suppose the defendant before his undivided interest was attempted to be extinguished by levy and sale, had filed a petition, setting forth in connection therewith his homestead right, and asking that in the petition it should be respected and secured to him, could it not have been done without diminishing or interfering with the just rights of his co-tenants? If the land should be found divisible without prejudice to the parties, it is competent for the referees to allot the shares to their respective owners, without having the same drawn, &c. Section 3617 of the Revision of 1860, declares that for good and sufficient reasons offered to the court, the referees may be directed to allot particular portions of the land to particular individuals. Under the discretion and power given to the referees by this section through the court, we do not see why the homestead may not be awarded to the proper owner or tenant without the slightest detriment to his co-tenants. Independently of any homestead right, it has been held by some courts, that where one of the joint tenants had made valuable improvements, that on partition subsequently made he would be entitled to that part on which improvements had been made, or to compensation. Robinson v. McDonald, 11 Tex., 385.
Such a ruling is founded in obvious justice and reason. The homestead right is derived alone from the statute, but cannot be claimed and enforced by one tenant in common to the detriment of his co-tenants. Hence if he should happen to have erected and occupied a homestead on a piece of land which could not be partitioned without great prejudice to his co-tenants, it would have to be sold, but in that event the court would see that the 'value of the homestead and improvements, distinct from the land,«would be secured to the party at whose expense and labor they had been made. From this last suggestion, it will readily be perceived that the manner of recognizing and setting apart *56a homestead as it was done in the case at bar, is liable to very great abuse, sometimes wholly impracticable, and often would result prejudicially to the rights of the other co-tenants. And in affirming this case we do not mean to sanction it as a precedent to be followed. On the other hand we think it ought not to be followed or adopted as a rule. "When two or more persons hold undivided interests in land, their interests can be separated only in one of two ways, either by an amicable partition in. releasing to each other, or by statutory proceeding in partition. If they adopt tills latter course, it cannot be united with any other action. § 4178, Rev. of I860. Nevertheless such an action of right, if a joint tenant desires to set up a homestead by way of defense, we know no reason why he should not ask the court to suspend the proceeding in that case, until the parties shall interplead as in partition cases, and have his homestead duly ascertained and allotted to him in the manner above suggested, if practicable. When this is done he will be in a condition to make his homestead defense available in tbe action of right. If it should turn out that no. partition could be made without great prejudice "to tbe parties interested, then bis defense to the action of law, would fall to the ground and he worrld he compelled to accept in money such compensation for his homestead as the court and referees might, under all the circumstances, award to him.
Although the proceedings in this ease were irregular, we do not interfere with them; we are not required by tbe record to settle any question of procedure, but simply a principle or right, and this we determine, as tbe court below did, in favor of the defendant, and therefore the judgment is
Affirmed.