293 N.W. 549 | S.D. | 1940
The defendant, Adolph Heckel, is the owner of a certain eighty acres in McPherson County. In 1928, Heckel and his wife, Rose Heckel, decided to build upon this land and make the place their home. This decision and intention was communicated to the plaintiff, Home Lumber Company, and this company was asked to make an estimate of the cost for the construction of a house upon this land. This estimate was made and the house built and immediately occupied by Adolph Heckel and his family as their home. Following the construction of the house and within the time allowed by law, the Home Lumber Company filed a mechanics' lien against the premises. In this action the lumber company is asserting a right to foreclose this purported lien. The trial court held adversely to the plaintiff and plaintiff has appealed from the judgment entered.
[1] Under the decisions of this court it is clear that the premises in question constituted the homestead of the Heckels. Adolph Heckel and his wife both intended that the new house which was built upon the premises should be their home, and this intention was fully complied with by the immediate occupancy of the house by the Heckels and the use of the premises as their home. Furthermore, this intention was communicated to the plaintiff at the time the materials which furnished the basis for the claimed lien were purchased. Cf. Kingman v. O'Callaghan et al.,
[2] The premises in question being the homestead of the Heckels, the question presented is whether the mechanics' lien as filed will attach to the homestead. Prior to the amendment of Section 455, R.C. 1919, by the enactment of Chapter 142, Laws of 1927, such lien did not attach to the homestead. Fallihee v. Whittmayer,
Construing this constitutional provision together with Section 18, Article 6, this court in the case of O'Leary v. Croghan,
[3] We are of the opinion that any change in the law, as announced in the case of O'Leary v. Croghan, supra, must come by constitutional amendment. Applying the rule there announced, we are of the opinion that the legislative attempt to subject the homestead to a debt created for "the original erection and construction of buildings thereon" is not within the authority of the legislature in that it is an attempt to differentiate between debts and discriminate between creditors.
We are not unmindful of the holding of this court that the homestead is subject to a vendor's lien. Hickman v. Long,
The judgment appealed from is affirmed.
All the Judges concur.