206 N.W. 691 | S.D. | 1925
This action was brought by the appellant, Farmers’ & Merchants’ National Bank of Milbank, for the purpose of restraining the sheriff of Grant county from issuing a sheriff’s deed conveying to the respondent a certain 80-acre tract of land, situate in said county. The appellant’s complaint further prays that in this action the rights of the parties be adjudicated, and that plaintiff be adjudged to have a lien upon said land superior to that of respondent, and to have a right to the issuance of a sheriff’s deed conveying to appellant the land in controversy.
The facts are as follows: On November 5, 1902, one Bridget Kane was the owner of the west half of the southwest quarter of section 27, township 121, range 50, in Grant county, S. D., and also of the east half of the southwest quarter of section 34 in said township. On that date she mortgaged the land in section 34 to •one Henry Avery for the sum of $400. Said mortgage was duly recorded on November 5, 1902. After the recording thereof, the said mortgage was duly assigned by Henry Avery to the Farmers’ & Merchants’ Loan Company of Milbank, S. D., and the assignment thereof was duly recorded on January 16, 1922. This mortgage was foreclosed, and on March 8, 1922, the sheriff of
During the year 1919' Stephen Kane purchased from a sister an undivided two-thirds interest in the land in section 34, which will hereafter be referred to as the land in controversy.
On October 4, 1920, Stephen Kane executed and delivered to the Marvin State Bank, of Marvin, S. D., a certain mortgage whereby he purported to mortgage to said bank his undivided two-thirds interest in the land in controversy. This mortgage was not recorded until December 23, 1920, and when recorded it contained a clause as follows: “The mortgagee hereby states and warrants that the above-described land is not a homestead.” This mortgage was duly assigned to the appellant bank.
During the year 1920, and for some years prior thereto, Stephen Kane farmed the land in controversy in connection with the land in section 27 on which he was residing with his wife and several children. He used the two 80-acre tracts together for hay, pasturage, and grain growing, although they were noncontiguous, a quarter section lying between them. Mabel Kane, the wife of Stephen Kane, refused to sign the mortgage which her husband gave to the Marvin State Bank, and on December 2, 1920, before the mortgage was recorded, Stephen Kane made a warranty deedf conveying the land in controversy to his wife, Mabel Kane. On February 28, 1923, Mabel Kane and Stephen Kane, her husband, mortgaged the land in controversy to the respondent bank.
On March 18, 1923, both appellant and respondent tendered! to the sheriff of Grant county amounts each of which were sufficient to redeem from the foreclosure sale made by the Farmers’ & Merchants’ Loan Company as aforesaid. The payment tendered by the respondent was accepted, and that tendered by appellant was rejected and returned to the sheriff, who returned it to the appellant.
The case was tried to the court without a jury — appellant contending that its mortgage originally given to the Marvin State Bank is a valid mortgage lien on the land in controversy, and,
The trial court made findings and conclusions favorable to respondent’s contentions, and entered judgment in accordance therewith. Appellant’s motion for a new trial was denied by the trial court, and from the judgment and the order denying a new! trial this appeal is taken.
Appellant’s brief presents ten assignments of error*. No question is raised as to the sufficiency of the findings to support the conclusions, or the sufficiency of the conclusions to justify the judgment. The sole contention is that the evidence is insufficient to sustain the findings.
The trial -court found that Stephen Kane and his family were occupying the land in controversy as their homestead, at the time the. mortgage upon which appellant relies was signed by Kane. It also found that the clause ás toi the non homestead character of the land was inserted by the bank officers after Kane had affixed his signature to the mortgage, and that such insertion was made by said officers to make it appear that the mortgaged land was not the homestead of Kane and his family, when such officers well knew that said land was such homestead.
There is evidence to support each of these findings. Stephen Kane testified that the clause as to the non homestead character of
The finding as to the land in controversy being the homestead of Kane and his wife is not based upon conflicting evidence. This is more properly a conclusion of law. But the trial court finds in detail the manner in which the land in controversy was used by Kane, in connection with the 80-acre tract on which he resided. There was no conflict in the evidence as to such use, nor is there any contention that the interest of Kane in the two tracts exceeded $5,000 in value. This being true, the trial court’s finding of the ultimate fact that the land in controversy was being occupied as a homestead is amply supported by the evidence. The manner in which the land was being used by Kane brings it within the provisions of section 458 of the Revised Code.
The trial court’s finding that the land in controversy was being used as a homestead by Kane and his wife at the time Kane sigiied the mortgage relied upon by the appellant will not be disturbed by this court. And by the provisions of our homestead
These findings of the trial court are conclusive of this appeal. The appellant had no valid lien giving it the right to iedeem from, the foreclosure. We find no error in the record, and the judgment and order appealed from are affirmed.