Blair v. Mayer

Decision Date19 January 1910
Citation124 N.W. 721,24 S.D. 563
PartiesSEYMOUR D. BLAIR et ux., Plaintiffs and respondents, v. SARAH A. MAYER et al., Executrix of the Estate of L. J. Mayer, deceased, Defendant and appellant
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Hughes County, SD

Hon. Lyman T. Boucher, Judge

Affirmed

Gaffy & Stephens

Attorneys for appellant.

Goodner & Goodner

Attorneys for respondents.

Opinion filed Jan. 19, 1910

WHITING, P. J.

This action was brought to quiet the title to a certain tract of land in Hughes county. It appears that the plaintiffs were, at the time this action was brought, and had been at all times hereinafter mentioned, husband and wife. The husband in 1890 filed a homestead claim upon the land in question, under the general homestead laws of the United States. He made final proof in March, 1895, receiving the final receiver's receipt, which showed that the land was taken as a homestead. Patent issued to him in 1902. In October, 1895, the husband, by warranty deed, conveyed his title to this land to his wife. Over defendants' objection it was shown that this deed was without consideration, was executed without the wife's knowledge, and that it was given solely to protect the wife in case of the husband's death. In 1892 the plaintiffs executed a note secured by a mortgage on another piece of real estate. This mortgage was foreclosed in T895, and on special execution the land mortgaged was sold, and deficiency reported by sheriff. In 1897 the judgment creditor caused general execution to issue. and same was levied on the land in suit as the property of plaintiff's; nothing connected with. the levy or return thereon showing that the property was levied on as the separate property of either plaintiff. This land was sold under such execution, and afterwards sheriff's deed issued, and through a chain of conveyances any rights that were acquired under such sheriff's deed passed to the appellant herein. Upon the trial findings and decree entered for plaintiffs; and a motion for new trial having been denied, the defendant Sarah A. Mayer appealed. It stands admitted that she is the sole party in interest as defendant.

The respondents claim that no title passed by the purported sheriff's sale, for the reason that the land could not be sold for the debt contracted before the patent issued. Further, they claim that the evidence sustains the court's findings to the effect that this land, at time of such sale, was the homestead of respondents under the state law, and, further, they claim that, for certain reasons alleged, the execution was invalid, and the proceedings thereunder irregular, thus rendering the sale void. The learned trial court held with respondents on the above propositions: and, if its holding was correct on the first proposition, it is conclusive of the rights of the parties herein, and renders it unnecessary to consider any assignments based on evidence or ruling pertaining to any other feature of the case.

Stated briefly, the proposition before us is this: Where a homestead entryman, after final proof, but before patent issues, conveys the homestead land to his wife, does such land become subject to lien of judgment against her, where such judgment was rendered upon a joint indebtedness of husband and wife, contracted long prior to final proof? It will be noticed that the above query leaves out all reference to the transfer being merely colorable, and is founded on facts undisputed herein. So far as we have been able to discover, this exact proposition has never been before the courts; but it would nevertheless seem to us that certain other matters have been fully settled by adjudications of this and other courts that must determine the above question in favor of respondents. It must be remembered that as the basis of this discussion we have the United States homestead laws and the reasons for their enactment. It has been held by a long line of decisions that the matters of disposing of the public lands, as to when, for how long, and for what debts they shall pass exempt to the government's grantee, are matters entirely beyond the power of state legislation to control.

In Wallowa v. Riley, 29 Or. 289, 45 Pac. 766, 54 Am.St.Rep. 794, it was well said:

"In pursuance of this power, and with a view to encourage the settlement of the public domain, Congress has invited heads of families to settle upon small parcels thereof, and make for themselves homes, with the assurance that in no event shall the land become liable to the...

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