Hansen v. Hansen
| Decision Date | 14 February 1918 |
| Docket Number | 4149 |
| Citation | 166 N.W. 427,40 S.D. 114 |
| Parties | BERGETTA HANSEN, Plaintiff and appellant, v. WALTER H. HANSEN et al, Defendants and respondents. |
| Court | South Dakota Supreme Court |
WALTER H. HANSEN et al, Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, Hamlin County, SD Hon. Carl G. Sherwood, Judge #4149--Modified W. N. Skinner, Eugene P. Campbell Attorneys for Appellant. M. J. Russell Attorney for Respondent. Opinion filed February 14, 1918. Rehearing denied March 8, 1918 (See 38 SD 272, 161 N.W. 188)
The only question presented upon this appeal is whether the homestead right of a surviving widow entitles her to the possession and occupancy, as against the heirs of the decedent, of the whole of the property owned by the decedent to the extent of 160 acres, and occupied as a home by the decedent and wife at the time of his death, or whether such homestead right is limited to $5,000 in value.
The appellant is the surviving widow of the decedent, and the respondents are his sons and daughters. At the time of his death the decedent was the owner in fee of a tract of 158.1 acres of land, valued at $13,438.54, upon which he had his dwelling house and buildings appurtenant thereto, and upon which he and his family had resided for many years prior to his death. During the course of the administration of the estate, the appellant filed a petition, praying that an order be entered setting the said tract of land and the buildings thereon apart to her as a homestead. This petition was granted, but, upon appeal by the respondents to the circuit court, that court entered a decree awarding the widow and minor children the right to use and occupy said tract, "to the extent of $5,000 in value, including the dwelling house and appurtenances thereunto belonging, situated on said land, to be set apart to her in the manner provided by law, during her natural, life, or so long as she may continue to occupy said premises as a home. ... " The petitioner, being dissatisfied with this decree, brings the case to this court upon appeal from that portion of said decree which limits her right of possession and occupancy to the extent of $5,000 in value.
It is the contention of appellant that she is entitled to the use, occupancy, and possession of the homestead during her natural life, or so long as she may occupy said premises as a home, without restriction as to the value of said homestead, to the extent of 160 acres. This contention is based upon the following provision of the statute. Section 3223, Pol. Code, provides:
"It [the homestead] may contain one or more lots or tracts of land with the buildings thereon and other appurtenances, subject to the limitations contained in the next section. ... "
Section 3224, Pol. Code, chapter 136, Laws of 1909, provides as follows:
"If within a town plat it must not exceed one acre in extent, and if not within a town plat it must not embrace in the aggregate more than 160 acres. ... "
Section 3231, Pol. Code, provides that:
"Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law."
Section 153 of the Probate Code, section 1, chapter 236, Laws of 1913, provides as follows:
"Upon the death of either husband or wife or head of a family having selected or being entitled to select a homestead, as provided by law, the survivor or survivors of such homestead's claimant, entitled thereto under the provisions of law, may continue to have exclusive possession of the homestead as defined by law until it is otherwise disposed of and have the rents and profits thereof as a whole or in shares according to law, and as it may be dealt with by law. ... "
If the provisions of sections 3223, 3224, and 3231, above set out, are not in conflict with or repealed by section 153 of the probate Code, chapter 236, Laws of 1913, or other subsequent legislation, there is no room for doubt that appellant, as the widow of the said decedent, has a homestead right in the entire tract of land, regardless of the fact that it exceeds $5,000 in value. But it is the contention of the respondents, and the circuit court evidently took the view, that the above-quoted sections of the statute are so qualified by later legislative enactments that the homestead allowed by law to a surviving widow can in no case exceed $5,000 in value. And they base their contention upon the apparent limitation on the value of the homestead found in section 3215 of the Political Code. This section reads as follows :
"The homestead of every family resident in this state, as hereinafter defined, to the extent of $5,000 in value, whether such homestead be owned by the husband or wife, so long as it continues to possess the character of a homestead, shall be exempt from all judicial sale, from judgment lien, and from all mesne or final process from any court. ... "
At first glance, this section appears to contain, or rather to recognize, a limitation on the value of the homestead. But such is not the case. Section 3215 does not purport to define or limit the homestead itself. It merely provides what portion, in value, of the homestead that has been created and defined by some other proviso of law shall be exempt from levy or sale on execution. The mere fact that the law provides that the homestead, to the extent of $5,000 in value, shall be exempt from levy or sale on execution, does not necessarily imply that the homestead can in no case exceed $5,000 in value, or that the heirs have the same right to the excess over $5,000 in value that is given to an execution creditor under the provisions of section 345, Code Civil Procedure.
Under the provisions of section 3222, the homestead embraces the house used as a home by the owner thereof. By section 3223 it may contain one or more contiguous tracts of land, with the buildings thereon, and other appurtenances, subject to the limitations contained in section 3224. This section limits the homestead to one acre in extent if within a town plat, and to 160 acres if not within a town plat, but contains no limitation whatever as to value. Nor does any other provision of our statute purport to limit the value of a homestead.
The difficulty in arriving at a correct solution of the question involved grows largely, if not wholly, out of a misunderstanding of the constitutional provision relating to exemptions. Section 4, article 21, of the Constitution reads as follows:
"The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced sales a homestead, the value of which shall be limited and defined by law. ... "
This section, it will be noted, does not purport to create or define the homestead nor to limit the value thereof. Neither does it purport to confer upon the Legislature any power that the Legislature did not already possess and had already exercised. Sections 6, 7 and 8, C. 38, Pol. Code 1877. These three sections have been retained in force unchanged, and now constitute sections 3222, 3223 and 3224 of the Revised Political Code of 1903. They have not been repealed by any subsequent statute, and the most that can be said for this provision of the Constitution is that it admonished the Legislature, in cases where the homestead, as it is defined and limited by Section 8, chapter 38, Political Code of 1877, exceeds a valuation to be fixed by the Legislature, to subject the portion thereof in excess of such valuation to the payment of the owner's debts. Prior to the adoption of the Constitution, section 322 of the Code of Civil Procedure, relating to exemptions, read as follows:
"Except as hereinafter provided, the property mentioned under this heading [Exemptions] is exempt from attachment or mesne process, and from levy and sale on execution, and from any other final process issued from any court."
And section 323 reads as follows:
The homestead referred to in this section is the homestead "created, defined and limited" by sections 6, 7, and 8 of chapter 38, Political Code 1877. This homestead, if not within a city or town, might consist of 160 acres of land, without any limitation as to its value. After the adoption of the Constitution, the Legislature, in an apparent attempt to carry out the provisions contained in section 4, article 21, of the Constitution, amended section 323, Code of Civil Procedure 1877, to read as follows:
Section 1, C. 86, Laws of 1890; also section z45. Rev. Code Civ. Pr. 1903.
This section is contained in the article on Exemptions, and is the first time that a $5,000 homestead limitation appeared in any law. From the above provision of the Constitution and the statutes enacted pursuant thereto, it is clear that the $5,000 limitation found in the exemption law applies only to an execution debtor's exemptions, and is not intended to be a limitation upon the value of the homestead itself. The effect of chapter 86, Laws of 1890, is the same as though section 4, article 21, of the Constitution read as follows:
"The right of the debtor ... shall be recognized by wholesome laws exempting from forced sale a homestead, the value of which for exemption purposes shall be limited and defined by law."
The result is that, where the owner of a homestead is free from debts, his homestead, if outside a city or town, may consist of 160 acres of land, with the improvements thereon, free from all limitation as to...
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