16 S.D. 489 | S.D. | 1903
This is an an action for the partition of real property. Findings and judgment were in favor of the plaintiff, and the defendants appeal. The questions raised are fully presented by the findings of fact and conclusions of law, the material parts of which are, in substance: That one Elizabeth V. Wells, at the time of her death, was the owner in fee of a quarter section of land in Pennington county, described in the findings; that the plaintiff was the husband of the said Elizabeth V. Wells, and that the said land was used by the deceased and the plaintiff herein as a homestead up to the time of her death, on the 25th day of February, 1891; that, ever since the death of the said wife, the plaintiff has continued to reside on the said premises and occupy the same as a homestead, and that he still resides thereon; that the defendants are the children of the deceased and the plaintiff, and that the plaintiff and the defendants are the only heirs at law of the said deceased; and that the deceased left no property, real or personal except the homestead above described. From the findings the court concludes, as matter of law, that the plaintiff is entitled to a decree awarding him in fee simple certain portions of the said premises, being one-third thereof. He also concludes that the defendants are entitled to a decree awarding to them the other two-thirds of the said premises, subject to the homestead right or life estate of the said plaintiff therein. It further'concludes that the said plaintiff is entitled to the use and
It will be observed from the findings of the court that the property described belonged to the wife of the plaintiff, and at the time of her decease was the homestead of herself and the plaintiff, and that since her death he has continued to reside upon and occupy the'same as a homestead. The question presented, therefore, is, can the homestead occupied as such by the surviving husband or wife be partitioned among the heirs during the lifetime of the survivor?
It is contended on the part of the appellants that the homestead in the exclusive possession of the sole surviving husband, claiming and retaining his life estate therein, cannot be partitioned in a suit by him against the heirs or reversioners. Section 5362, Comp. Laws Dak. 1887, provides: “When several co tenants hold and are in possession of real property as partners, joint-tenants, or tenants in common, * * * an action may be brought by one or more of such persons for a partition thereof. * * *” It will be observed that it is only when several co-tenants hold and are in possession of the real property that an action for the partition thereof is authorized. It will be noticed that it is found by the court that the premises ■ constituted the homestead of the plaintiff and his wife in her lifetime and up ro the time of her death, and that he is in possession of the same, claiming his homestead rights therein as her surviving husband. It is not affirmatively stated in the findings that the defendants were in possession of any part of the premises as co-tenants of the plaintiff or otherwise, and
So far as the rights of the surviving husband wife or min- or children to occupy the property as a homestead are concerned, it is not material in which party the legal title is vested, and hence, if there are heirs of the party holding the legal title, they will not be entitled to a partition of the property during the lifetime of the surviving husband or wife or minor children who actually possess and occupy the premises as a homestead. Burns v. Keas, 21 Iowa, 257; Nicholas v. Purczell, Id. 266, 89 Am. Dec. 572; Dodds v. Dodds, 26 Iowa, 311; Orman v. Orman, Id. 361. If the heirs' are not entitled to a partition of the homestead during the lifetime of the surviving husband or wife or minor children who actually occupy the same as a homestead, it would seem to necessarily follow that such survivor would not be entitled to a partition of the same so long as he or she occupied the same as a homestead. Undoubtedly the surviving husband in this case might have abandoned his homestead right and claimed his share of the homestead property, in which case there could have been a partition of the same between the plaintiff and the defendants, if the de
The defendants allege in their answer that in order to preserve the property they expended a large sum in the payment of taxes, namely, the sum of $994.74. The court finds that this sum was so paid by the defendants, but concludes that the sum of $119.60 — taxes for the year 1890 — was a claim against the estate of the deceased, and was, through failure of the defendants to present their claim to the administrator, barred, and is not properly a charge against the plaintiff. The court further concludes that the defendants are entitled to the amount paid for taxes for the years 1891 to 1897, inclusive,
It is contended on'the part of the appellants that it is the duty of the plaintiff to keep the premises in repair and to pay all the ordinary taxes upon the land during his tenancy, and that the neglect to do so constitutes waste entitling the defendants to recover so much of the rents and profits as may be necessary to pay the taxes. It is assumed by the appellants that the plaintiff is a tenant for life, and as such is bound by all the obligations imposed upon such tenant. The possession of the surviving husband or wife or minor children of the homestead is somewhat peculiar. As we have seen, the plaintiff in this case is not only a tenant for life, but he is absolute owner of a one-third interest in the property. As to the other two-thirds he may be properly treated and considered as tenant for life, but as to the one-third he must be regarded as owner. The plaintiff’s relation to the property is one created by statute, and is not easily defined.
In Voelz v. Voelz, supra, the Supreme Court of Wisconsin, in speaking of a surviving widow, uses the following language: ‘ Tt is useless to speculate as to what kind of an estate the widow’s homestead right, as it is called, in this statute is, or as to how it should be classified. It is sufficient that it is accompanied by actual and exclusive possession that cannot be disturbed so long as she lives unmarried. The court, therefore, had no jurisdiction over- it in this case. ” The proceeding in that case was one for partition brought by the heirs of the de
It seems, however, to be but just and equitable that the rule requiring the tenant for life to pay all the general taxes (section 2787, Comp. Laws Dak. 1887) should be applied to the surviving husband or wife and minor children who occupy the homestead as such. That section reads as follows: “The owner of a life estate must keep the buildings and fences in repair from ordinary waste, and must pay the taxes and other annual charges, and a just proportion of extraordinary assessments benefitting the whole inheritance.”
That it is the duty of the tenant for life to keep up the general taxes upon the property held by him as such tenant is not only required by our Code, but seems to be well settled by the authorities. Wash. on Real Property, 130, vol. 1; Murch v. J. O. Smith Mfg. Co., 47 N. J. Eq. 193, 20 Atl. 213; St. Paul Trust Co. v. Mintzer (Minn.) 67 N. W. 657, 32 L. R. A. 756, 60 Am. St. Rep. 444; Cairns v. Chabert, 3 Edw. Ch. 313; Defreese v. Lake, 109 Mich. 415, 67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584; Cooley on Tax., p. 467. It is quite clear, therefore, that the defendants, who were compelled to pay the taxes in order to protect their interest in the estate, are entitled to a judgment requiring the plaintiff to reimburse them for the amount so necessarily paid, and that the same should be made
It is further contended on the part of the appellants that, if the tenant for life makes repairs or permanent improvements on the premises, he cannot claim compensation for the same from the remaindermen The duty to keep the property in repair is imposed upon the tenant for life by the section of the statute quoted, and this duty may properly be imposed up - on the party in possession of the homestead. This rule seems to be quite well settled by the authorities also. Sohier v. Eldredge, 103 Mass. 351; 1 Wash. Real Prop. 123; Parsons v. Winslow, 16 Mass. 361; 6 Am. & Eng. Ency. of Law (1st Ed.) 882.
Treating the plaintiff, therefore, at least as quasi tenant for life, it is his duty to keep the premises in repair, and he was not authorized to make permanent improvements and make the same a charge upon the property as against the defendants in this action. What the rights of his heirs may be, upon the death of the plaintiff, regarding these improvements, it is not now necessary to decide.
It is contended on the part of the appellants that, as all of the facts are before the court, the defendants in equity are entitled to a full adjustment of their taxes in this proceeding, and this, in our opinion, should be done.
The judgment of the court below is reversed, and that court is directed to enter a judgment in favor of the defendants for the amount of the taxes found to have been paid by them, and interest thereon, and directing that' the same constitute a lien on the plaintiff’s ■ interest in the premises in his own right, and also his interest in the homestead as surviving hus