169 N.W. 515 | S.D. | 1918
This action was ¡brought to restrain an execution sale of certain real estate, the sole question in. issue being 'whether or not the real estate in question was the homestead of plaintiff. The cause was tried to the court without a jury. The court made findings of fact and thereon entered conclusions and judgment in favor of the defendants. From such judgment and an order denying a new trial this appeal was taken.
There is left for our consideration but the one question as to whether or not the finding's support the conclusions and judgment. Without going into detail as to the facts found it is sufficient to say that they disclose that the property in question became the homestead1 of appellant about the year 1909. She then resided thereon with her then husband, and continued to reside thereon until about January, 1915, having meanwhile separated .from' her husband. From July, 1911, there has fesidfed with, and been dependent upon her, a small child, her niece. About January, 1915, appellant rented this property and went to live temporarily with a daughter. After a few. months she entered the employ of the federal government, residing during suich employment at an Indian agency and in buildings provided by the government. In October, 1916, she remarried, marrying a party who also was in the government employ at such agency. Thereafter she ceased to work for the government, but continued to live 'With' her husband in a government building, he continuing to be an employe of the government. The execution was issued after such 'marriage. The property in question has been rented continuously from the time appellant left same, but she retained a room in the house, and kept therein some of her furniture. A part of such furniture, but not all, was removed upon her remarriage. The court made no finding whatsoever as regards whether appellant ever intended1 to abandon her homestead rights.
The judgment and order appealed from are reversed.