6 S.D. 73 | S.D. | 1894
This was an action to recover possession of 140 acres of land alleged to be unlawfully withheld by defendants. The defendants demurred to the complaint on the following grounds, among others: “(1) Said complaint does not state facts sufficient to constitute a cause of action herein in favor of the plaintiff and against the defendants. (2) It appears upon the face of the complaint that the plaintiff is not such person as can claim a homestead under the exemption laws of the territory of Dakota, now state of South Dakota. (3) It appears on the face of the complaint that before the land described in the complaint, and claimed by the plaintiff as his homestead under the exemption laws of the territory of Dakota, now state of South Dakota, was levied on, and sold under execution by the defendants herein, the plaintiff had abandoned his homestead thereon by entering an ajacent quarter section of land under the homestead laws of the United States.” The
The appellant (the plaintiff in the court below) contends that under the provisions of chapter 23 of the Political Code the plaintiff, though a single person and not the head of a family, was .entitled to claim and hold a homestead under the homestead law as it stood prior to the amendment of 1890. The two sections mainly relied on by appellant are sections 2449 and 2467, Comp. Laws, which read: ‘ ‘The homestead of every family resident in the territory as hereinafter defined, whether such homestead be owned by the husband or wife so long as it continues to pos-' sess the character of a homestead, shall be exempt from judicial sale, from judgment lien, and from all mesne or final process issued from any court.” Section 2467: ‘‘Every family, whether consisting of one or more persons, in actual occupancy of a homestead as defined in this chapter, shall be deemed and held to be a family within the meaning of this chapter. ” It will be observed that by section 2449 “the homestead of every family” as thereinafter defined, shall be exempt. The learned counsel for appellant contends that by the provisions of section 2467 one person, though not the head of a family actually occupying a homestead, as defined in that chapter, constitutes a family, and is entitled to his homestead exemption, and he says: “It is evident from the section that a family may consist of one person only. When can this be? The section itself answers: When ‘in the occupancy of the homestead.’ The plaintiff is a widower, without children. - He is one person. But the complaint alleges that he is, and has been since March, 1885, prior and subsequent to the defendants’ sale, living upon, and in the actual occupancy of, the premises claimed by him as exempt. He is therefore a ‘family,’ within section 2467.”
Our conclusion is that by section 2467 a single person in the occupancy of a homestead as defined in the act is a family, within the meaning of the act, and that prior to the amendment of 1890 a single person occupyirg a-homestead as defined in the act was entitled to hold the same exempt from forced sale on execution for a debt incurred subsequently to the occupation of such homestead. We say “prior” to 1890 without intending at this time to indicate any opinion as to the effect of the act of that year amending the exemption law. How far dr to what extent this section is repealed or modified by the amendment of 1890, it is not necessary now to decide, as this case is decided upon the law as it existed prior to the amendment of 1890. So far, therefore, as the demurrer is based upon the allegations of the complaint that the plaintiff was a widower, without wife or children, it should have been .overruled.
But respondents further contend that as it appears from the complaint that plaintiff’s homestead, claimed by him, consisted of 141 acres of his pre-emption claim, for which a patent was issued to him, and 19 acres of a government homestead claim contiguous to said 141 acres of his pre-emption claim,- on which were his improvements, and upon which he was living in order to secure a government title to 160 acres of government land, he could not claim a homestead embracing said 141 acres of his pre-emption claim and said 19 acres of his government homestead claim. The counsel for the respondents- state their position upon the question as follows: “That since the homestead laws of the United States (Rev. St. §§2290,2291) require
We are of the opinion, therefore, that the demurrer to the plaintiff’s complaint, as to the first and third grounds, stated in the demurrer, was properly sustained. The order sustaining the demurrer is therefore affirmed.