8 S.D. 464 | S.D. | 1896
This was an action to recover the possession of real property, and damages for its detention. The action was originally commenced against Kreuger alone, but subsequently Minnie Nidrow (formerly Minnie Kipp) was made a. party defendant by an amendment to tb\e answer. Kreuger, in.
At the commencement of the trial, counsel for the defendants objected to any evidence being given under the complaint upon the grounds (1) that the court had no jurisdiction; (2) because the complaint did not state facts sufficient to constitute ta cause of action, This objection wag gyerruled. and the dq-
. At the close of the evidence on the part of the plaintiff, the defendants moved the court to direct a verdict for the defendants, This was denied, and exception taken; but as the defendants proceeded to introduce evidence on the part of the defense, and subsequently moved for a direction of a verdict at the close of all the evidence; this exception will not be further .considered.
At the close of all the evidence the plaintiff and defendants moved for a direction of the verdict. The motion of the plaintiff will be considered first in order, as its disposition will .determine the motion,, of the defendants. The counsel for the respondent raises a preliminary question ftnd is that this
It is contended by the appellants: First, that the husband and wife have a homestead interest in partnership real property, and that no conveyance of such homestead can be made by the husband alone. Second, that after a divorce the wife retains her interest in the homestead, and that, under the facts proven in this case, she was entitled to retain possession of the premises occupied by herself and husband at the time the divorce was granted. Third, that the. conveyance made by Kipp of his half interest in the partnership property was absolutely void. All of these propositions are controverted by the respondent.
The real property in controversy being partnership property, no homestead rights therein could be acquired by Mr. and Mrs. Kipp, as against the co-partner. Sec. 4084, Comp. Laws, provides that “each member of a partnership may require its property to be applied to the discharge of its debts, and has a lien upon the shares of the other partners for this purpose and for the payment of the general balance, if any, due to him,”
There is, however, another — and perhaps more satisfactory —ground upon which the ruling of the court can be sustained, and that is that the defendant Minnie Nidrow (formerly Minnie Kipp), having been divorced from her husband in the fall of 1893, ceased to have any right to the occupancy of the homestead property (admitting that there could have been such a right in co-partnership property) after she ceased to be the wife of Kipp, who had the legal title to the property at the time he transferred the same to the plaintiff. The only evidence of the divorce was the admission of Minnie Nidrow when on the witness stand as a witness. She stated that in December, 1893, there were divorce proceedings between her and her husband, and that a divorce was granted, and that her name was then Minnie Nidrow, but was formerly Minnie Kipp. This evidence was admitted without objection, and prima facie established the divorce; and as her evidence was not controverted or disputed, we must assume that a divorce was properly granted. Appellants contend that this court will presume, in the absence of evidence to the contrary, that the decree gave her the right to retain possession of the homestead. But this we cannot do. Courts will sometimes indulge in presumptions
Appellant’s further contend that as the deed from Kipp to Brady was executed prior to the granting of the divorce, it was void, and plaintiff was not entitled to recover the possession of the premises from the defendants, as a plaintiff must recover, if at all, upon the strength of his own title. A conveyance of the homestead, not executed by both husband and wife, the statute declares, “shall be of no validity.” Section 2451, Comp. Laws, amended by Chapters 76, 77, Laws 1891. Whether such a deed is absolutely void for all purposes, or only invalid as against the party having a homestead right, it is not necessary now to determine, as the plaintiff was the owner of an undivided one-half interest in the property by reason of his purchase from Overby, and was therefore at least a tenant in common with Kipp; and, as against one without title he could recover the possession of the whole property, as such tenant in common. Granting, therefore, that the deed from Kipp to him was void, the direction of a verdict was proper, as against parties showing no right to the possession of the property. Collier v. Corbett, 15 Cal. 183; Treat v. Reilly, 35 Cal. 129. Finding no error in the record, the judgment of the circuit court is affirmed.