6 S.D. 244 | S.D. | 1894
This action was brought to foreclose a mortgage executed by Sharon G. Evans, the husband of appellant, upon real estate in the city of Pierre. Jennie Evans, the wife, defends upon the ground that when the mortgage was executed the premises mortgaged constituted the homestead of defendants; that she was a resident of the territory of Dakota, and did not sign or in any manner consent to the mortgage. Upon trial by the court, plaintiff had judgment of foreclosure, and Jennie Evans appeals.
Two questions are presented: Did the mortgaged premises constitute the homestead of defendants? and, if so, were both husband and wife residents of the territory, so as to make their
These are all the facts as to the actual occupancy of these premises, or their user as a home, by either Sharon G-. Evans or his wife or family. It might be admitted, as we suspect from the evidence the fact is, that Evans did not want his wife to remain in Pierre, or even ■ that he unjustifiably sent her away; that fact, however undutiful or wrong, or even cruel, it might have been, could not change the character of his separate occupation of this room, nor supply, nor take the place of, nor excuse, the affirmative facts necessary to impress upon it the character of a home or homestead. He testified that in the occupation of this room he did not use or occupy or claim it as a home either for himself or his family. He further testifies, that when he left Pierre in N ovember, 1884, he went for the purpose of taking up his residence in Washington territory, and did so. It also appears that in 1884, and while Evans was so occupying the room in question, he was acting as one of the county commissioners, to which office he had been elected the fall before, and that the district which he represented, and of which, as such commissioner, he was required to be a resident, did not include the building in which appellant claims her husband’s home to have been. His evidence, both as to the use of the room and his purpose in leaving Pierre, and the county records showing his holding of such office and the boundaries of his district, were objected to on the ground that they were “not binding upon the defendant Jennie Evans,” and were not competent. He had an undoubted right to make his home in this building, or not, as he chose, and he had a right to change his residence, from Dakota to Washington. Whether he did either in fact depended largely upon his intention and purpose,
So far as the objection to Evans' evidence rests on the ground that the relation of the parties as former husband and wife made him an incompetent witness against her, the answer must be that, whatever may be the rule at common law, our statute seems to cover the ground and settle the question in favor of the competency of the witness to testify to such facts as we allow -ourfeelves to consider, to wit, his own purpose and conduct in occupying the premises in question and in removing from Dakota to Washington.. Section 5260, Comp. Laws,
Upon the trial below the court found as a fact that prior to the making of this mortgage Sharon G. Evans never resided upon this property, and that at the time of making the same he did not so reside thereon. While under the statute, in a case like this, it becomes the duty of this court to review the evidence, the rule is that the finding of the trial court stands unless the evidence clearly preponderates against it. We do not think it does. It is quite possible that upon the trial some evidence was admitted that should not have been. These questions we do not discuss, for in reviewing this case we have only considered such testimony as we regarded competent, and we base our conclusions thereon. Our judgment being that the