Appeal from the District Court, Seventh Judicial District, Rapa County.

This was a suit in equity against defendant Bostwick, a judgment creditor, and defendant Ellis, as Sheriff, to enjoin the execution sale of Block Eighteen, in Rapa City, upon a judgment recovered by Bostwick against plaintiff, Riley Gregg. The plaintiffs claimed said property as their homestead, and therefore exempt from execution. The defendants denied all the material allegations of the complaint, except that they threatened and intended to sell said property upon said execution, and pleaded that it was by law subject to be so sold. There was an injunction issued, restraining the sale pendente lite. The cause was tried before the Court, which found the following facts and conclusions of law, to wit:

“ 1. That the plaintiffs were married prior to the year 1850.

“ 2. That in 1850 plaintiff Riley Gregg purchased Block Eighteen, comprising Lots One, Two, Three, and Eour in Rapa City.

“ 3. That plaintiffs, with their family, consisting of five children, resided upon a portion of Lot One in a house built by Riley Gregg, from 1850 until 1857 or ’58. That in 1851 the whole of said block was inclosed with a fence by Gregg.

“ 4. That in 1857 or ’58 they removed with their family from their dwelling on Lot One to a house built by Riley Gregg on the northeast corner of Lot Three, and that thereafter, in 1860, they again removed to another house on the northwest corner of Lot Three.

“ 5. That on the 21st day of March, 1862, plaintiffs regularly executed and recorded their declaration of homestead, claiming all of Block Eighteen as a homestead.

“ 6. That at that date they were still residing with their family on the northwest corner of Lot Three, in a house which stood upon a portion of said lot, which was ninety feet six inches on Coombs street (West) and sixty-six feet on Clay street (Rorth), forming a parallelogram, which was inclosed with a fence, and separated thereby from the remaining portions of Lot Three.

“ 7. That at said date, March 21st, 1862, there were upon said Block Eighteen eight buildings besides the dwelling house in which plaintiffs then resided, to wit: On Lot One a cheap hall or gymnasium building; upon Lot Two a storehouse ; upon Lot Three a dwelling house; and upon Lot Four five dwelling houses. That said houses were at that time, had been previous, and were subsequently and up to the. present time used and occupied by tenants of Biley Gregg for various purposes, to wit: the hall or gymnasium for public exhibitions and as a-political club room, and at the present time as a stable; the storehouse for mercantile purposes ; and the dwelling houses as residences. That said buildings were not constantly so used and occupied, but were used and occupied in no other manner and for no other purposes. That they were separated from each other by fences, and were all separated from the parallelogram or lot of ground upon which stood the dwelling house in which plaintiffs resided.

“ 8. That the value of the parallelogram or lot upon which plaintiffs resided, hereinbefore described, was at the time of filing the declaration and still is of less value than five thousand dollars.

“ 9. That until the year 1857 there were no fences subdividing said Block Eighteen, nor inclosing any portion thereof, but that the whole was inclosed.

“ 10. That between 1857 and March 22d, 1862, there were inclosures erected around subdivisions of said lots immediately adjacent to said dwelling houses and having no regard to the lines of said lots.

“ 11. That on the 22d of March, 1862, Biley Gregg was the owner and in possession by himself .or his tenants, of the whole of Block Eighteen, and at the time of the commencement of this suit such possession was held by him and his tenants, and that no sale nor alienation of any portion of said block had been made.

“ And the Court finds as conclusions of law that the parallelogram or lot of ground upon which plaintiffs were residing at the time of filing their declaration of homestead, to wit: ninety feet six inches on Coombs street (West) and sixty feet on Clay street (North), was at that date impressed with the character of a homestead, and was and is exempt from seizure and sale under execution. That the remaining portion of Block Eighteen was not so impressed, did not at the time of said filing constitute any portion of the homestead of plaintiffs or either of them, and does not now, and that all of said remaining portion is subject to sale under execution on a proper judgment against Biley Gregg.”

Whereupon judgment was entered in accordance with said conclusions of law.

The plaintiff moved for a new trial, and assigned as reasons therefor that said conclusions of law and judgment are not sustained by, hut are contrary to, the said facts found, so far as therein any portion of Block Eighteen was held to be not exempt from execution; and that said findings and judgment are against law. The motion was denied by the Court, and from the said judgment and the order denying said motion, the plaintiffs appealed, and assigned for error that the Court erred in denying said motion, and that said judgment is against law.