149 N.W. 559 | S.D. | 1914
This case is before us on rehearing, petitioned for both by appellants and respondent. The former decision will be found in 33 S. D. 551, 146 N. W. 716. Appellants seek an order directing- the trial court to enter judgment for appellants, on findings of fact heretofore made by the trial court and vacated as shown by the record on a former appeal. 27 S. D. 500, 131 N. W. 1091, 36 L. R. A. (N. S.) 1024. The right of appellants to demand such order was predicated on alleged exceptions taken at the last trial. Our decision in the present case did not determine the question presented, because of the supposed absence of exceptions to the ruling of the trial court vacating- findings and judgment in favor of appellants. The trial court at first assumed that the former decision (27 S. D. 500, 131 N. W. 1091, 36 L. R. A. [N. S.] 1024) so directed, but later vacated-the findings and judgment as erroneous. Appellants’ petition for rehearing calls our attention to portions of the record showing that exceptions to this order were in fact taken, which were overlooked, because the same appeared in the record before the ruling, and not after it, as in the usual sequence of proceedings. We have now examined the ruling compl-ained oí, and are of opinion the trial court was right in vacating its findings and judgment and proceeding with the new trial. A new trial necessarily followed the reversal, as indicated by the following excerpt:
“The case must be remanded to the trial court, that it may determine the question of homestead in the light of this court’s views as to the effect of the loss of homestead in this land by the taking of the government land.”
Appellants’ contention is that the findings, conclusion, and judgment are against the preponderance, and are contrary to the weight, of the evidence. The burden of proof is on plaintiff to show facts which entitle him to an interest in the land as the husband of Elizabeth Ann Somers, deceased,, and to do this he must establish the fact that at the time of the execution and delivery of the deed the premises in dispute were her homestead. Subdivision 7, § 5127, Comp. Laws 1887 (Code Civ. Proc.), ex
‘A widow or widower, though without children, shall be deemed a family while continuing to occupy the house used as such at the time of the death of the husband or wife.”
Section 2467 declares that:
“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.”
Under these provisions of Comp. Laws 1887, the homestead exemption was to the “family” as therein defined. Hesnard v. Plunkett, 6 S. D. 73, 60 N. W. 159. In 1890 (chapter 86") the Legislature changed the law as contained in Comp. Laws 1887, by amending sections 5127-5129 (Code Civ. Proc.) so as to exempt from all levy, px-ocess, or sale a homestead, defined therein, “to all heads of families,” conforming the law to section 4, art. 21, of the Constitution, which required the Legislature to enact general laws exempting a homestead “to all heads of families.” The act of 1890, however, did not purport .to amend section 2449, Comp. Laws 1887, being in the then existing Political Code, which gave the exemption to “every family,” etc. In 1903, by section 3215, Pol. Code, the Legislature re-enacted section 2449, Comp. Laws 1887 (exemption to family), and by section 345, Code Civ. Proc., re-enacted section 1, c. 86, Laws 1890, giving the homestead exemption “to all heads of families.” Therefore, as the law now stands, the Political Code gives the exemption to “families,” while the Code of Civil Procedure gives it to: the “heads of families.”
“Did she acquire a homestead interest in the land in suit upon her return thereto-? This is a question that could not have been passed upon by the trial court, inasmuch as it erroneously found that the wife, never lost her homestead interest therein while upon her government homestead.”
This statement is followed by a recapitulation of undisputed facts. The court said:
“Can this court hold that with such evidence in the record (though there is some that might be construed as showing the mother to be the head of the family) the trial court would have found this land to be the mother’s homestead, when deed to appellants was executed, if he had rightfully found that she had previously lost -her homestead rights therein? 'We cannot so hold.”
Upon the new trial, the trial court did “so hold.” The question before us at this time is wether the finding is sustained by a preponderance of the evidence. The evidence is £0 fully stated in our former decision that a restatement here is unnecessary. We are clearly of opinion that the finding cf the trial court is against the preponderance of the evidence and must b.e reversed. It is immaterial, in this case, whether the exemption be to “the family,” or to “the head of the family,” or whether Mrs. Somers alone could have become both the head of the family and a family. The preponderance of the evidence shows that she did not resume control of the land, nor did she become the head of the family, which for five years of her residence upon her government homestead had occupied and controlled the premises, although the title remained in her. She returned to and became a dependent upon hér children, with precisely the same effect as though such children had been residing upon premises not owned by her. She found a “home,” but did not establish a “homestead right.”