Aspey v. Barry

• Decision Date: 01 June 1900
• Citation: 83 N.W. 91,13 S.D. 220
• Parties: MARY ASPEY, Plaintiff and appellant, v. ROSE A. BARRY, Defendant, Luther A, Jackson, Frances A. Jackson, and Caroline Jackson and St. Croix Lumber Co., Defendants and respondents.
• Court: South Dakota Supreme Court

13 S.D. 220

83 N.W. 91

MARY ASPEY, Plaintiff and appellant,

v.

ROSE A. BARRY, Defendant, Luther A, Jackson, Frances A. Jackson, and Caroline Jackson and St. Croix Lumber Co., Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, McCook County, SD Hon. Joseph W. Jones, Judge Reversed P. W. Scanlan Attorneys for appellant. M. A. Butterfield Attorneys for respondent Jackson. L. L. Fleeger Attorneys for respondent St. Croix Lumber Co. Opinion filed June 1, 1900

FULLER, P. J.

On the 14th day of February, 1896, Samuel Jackson died testate, and this action is to determine the respective interests of his heirs in 160 acres of land which he held at the time of his death, under the federal statute, as a timber-culture claim, and for which the United States subsequently issued a patent conveying the same in terms, and without further designation, “to the heirs of Samuel Jackson,” who took, not by inheritance, but as grantees of the government. Rogers v. Clemmans, 26 Kan. 522; Cooper v. Wilder, 111 Cal. 191, 43 Pac 591; Hall v. Russell, 25 LEd 829; Hershberger v. Blewett (C. C.) 55 Fed. 170. It being practically conceded that decedent’s possessory right under the United States statute could not be disposed of by will, the point requires no further discussion or citation of authority. Samuel Jackson left surviving him two daughters, the appellant Mary Aspey, and the respondent Rose Barry; also a son, the respondent Luther A. Jackson; and a widow, the respondent Frances A. Jackson, from whom he had lived apart continuously for years pursuant to a mutual agreement clearly expressed in a duly acknowledged and certified written instrument by which their legal relations as to property were expressly altered and defined as follows:

“That said Samuel A. Jackson shall remain upon and occupy the southwest quarter of section twenty-six, in township one-hundred and one north, of range fifty-four in McCook county, South Dakota, the same being the homestead of the parties hereto, tend the crops, and farm the same as he may desire, until the same is sold; the said Samuel A. Jackson to deliver unto his said wife one-third of all crops raised thereon by him, or the proceeds thereof. That the said Frances A. Jackson shall have the privilege of selling and disposing of the said premises whenever she desires, and for such consideration as, in her Judgment, she may think best, and the said Samuel A. Jackson shall join her in the execution of a sufficient deed thereof upon the said Frances A. Jackson paying him the sum of three hundred dollars for the purpose of reimbursing him for the improvements made by him on said premises at his sole expense.”

In case, however, the said wife shall make sale of said premises at the time when the said husband shall have crops growing or standing thereon, he shall have the privilege of remaining thereon until after said crops are fully harvested and cared for, and in case the said wife effect a sale of said premises at a time the same shall have been prepared by said husband by plowing for the ensuing year’s crops, then, in that event, she shall pay just compensation for such work before he shall be required to surrender possession of said premises. Said Frances A. Jackson hereby relinquishes all right, title, interest, and demand whatever she may now have or may hereafter acquire by operation of law or otherwise in and to any and all personal and real property now in possession of or that may hereafter be acquired by, the said Samuel A. Jackson, meaning thereby and intending to convey any and all title, right and interest in or to any and all such property in the possession of the said Samuel A. Jackson, or that may be by him hereafter acquired. Said Samuel A. Jackson hereby relinquishes all right, title, claim, interest, or demand whatever (except the claim of three hundred dollars, and just compensation for preparing said premises for crops in case a sale thereof is made at a time they are prepared) he may have or may hereafter acquire, by operation of law or otherwise, in and to any and all personal property now in possession of, or that may hereafter be acquired by said Frances A. Jackson, meaning thereby and intending to convey any and all right, title, and interest in or to any ,and all such property in the possession of the said Frances A. Jackson, or that may be by her afterwards acquired. Each of said parties hereby...