144 N.W. 119 | S.D. | 1913
Lead Opinion
This action was brought for the purpose of foreclosing a mechanics’ lien against -certain real estate owned by defendants Griffin, being lots 1 and 2 of a certain city block. McCullough was made a party defendant owing to the fact that he was the holder of a mortgage against said real esate, which mortgage plaintiff -sought to have decreed to be a lien subsequent and inferior to his; his- rights depend upon those of the other two respondents and no separate mention of same will be made herein. The word “respondents,” when used in this decision, will be understood to refer to the Griffins only, unless otherwise noted. The other defendants were joined owing to the fact that they also were mechanics’ lien claimants, claiming liens on the same property, and they have become appellants herein. The trial court found that respondents were husband and wife; that, for several years prior to the dates hereinafter mentioned, they had, with their minor children, occupied, as their homestead, the premises in question; -that the said lots are less than one acre i'n area and, with all the buildings and improvements thereon, do not exceed $5,000 in value; that prior to October, 19x0, the improvements on said lots consisted of a small house built some 28 years prior thereto and not exceeding $200 in value, located on lot 2, a small barn on lot 1, moved thereon in October, 1910, but before the commencement of the building of the dwelling house hereinafter mentioned, and a well located on said lot 1-; that -said house, because of its age and condition, was not a fit dwelling
Respondent urges that: “The assignments of error are not sufficient to present any question to this court. * * * The first five are defective in that they wholly misquote the several conclusions of law to' which they refer. * * * The * * * [other] assignments * * * are insufficient for the reason that they fail to point out the particulars of the errors assigned.” The assignments last referred to are clearly not subject to the objection raised.
Summarizing we would say: -While section 32-22, supra, provides that the homestead “must embrace the -house used as a home,” this section should be given a liberal construction in favor of the homestead right, so that one may even claim vacant land as a homestead when he has a 'bona fide intent of erecting his family dwelling h-p-use thereon and such intent is seasonably disclosed to those who have a right to know of the same and to- rely thereon. Said section should be so construed that one, occupying a building as his homestead, may still elect, subject to the conditions above specified, to- select a vacant piece of land for a home
The decree appealed from is reversed as to all the respondents.
Dissenting Opinion
(dissenting). This case is to be reversed because -there was no finding and evidence of intent in relation to the homestead character of a second building placed upon homestead premises. The question of intent is an evidentiary matter and one not necessary to be specifically found. The finding that the entire property, including the new building, was a homestead-includes and is based- upon the evidence of intent. It is never necessary ,to make specific findings of fact upon each and every specific item of probative evidence, but it is stifficent if the ultimate fact is found. An intent may always be inferred from the acts of a party. Men are hung or imprisoned for life upon no
Under the circumstances of this case it seems to me that the
The fact that some desire to sell the new building was shown to exist is wholly immaterial, for the reason that the owner of homestead property has the right to sell the same without destroying the homestead right, and however much he might desire to make such sale could not deprive him of his right. I do not believe that a person can be cut out of his homestead right by any such method. It was the plain duty of plaintiff when he entered into t'he contract to sell building material to Griffin to ascertain his intentions as to homestead rights. Plaintiff was bound at his peril to take notice of the homestead character of the premises on which this new building was constructed. 21 Cyc. 552.
In addition, I desire to suggest a conclusion which I think, must necessarily flow from the logic upon which the majority opinion in its main features is founded. The proposition is there laid down that it is the right of the husband, the head of the family, to select the homestead; that the only limitation upon the exercise of this right is as to area and value; that there is nothing in the homestead law which prevents the husband from selecting a homestead of less area or value than that prescribed by the
From' a careful reading of the record- it seems to me that there has been a fair trial in the court below, and that the findings and judgment are sufficient to sustain the judgment and