Harter v. Davison

• Decision Date: 10 August 1928
• Docket Number: No. 5996.,5996.
• Parties: HARTER v. DAVISON, Sheriff.
• Court: South Dakota Supreme Court

53 S.D. 399

220 N.W. 862

HARTER

v.DAVISON, Sheriff.

No. 5996.

Supreme Court of South Dakota.

Aug. 10, 1928.

Appeal from Circuit Court, Gregory County; N. D. Burch, Judge.

Suit by Cora E. Harter against W. A. Davison, as Sheriff of Gregory County, and the Hanson Glass & Paint Company. Judgment for plaintiff, and defendant last named appeals. Affirmed.E. O. Patterson, of Dallas, for appellant.

Charles A. Davis, of Burke, for respondent.

MISER, C.

F. E. Harter, husband of respondent, mortgaged to appellant two lots with a dwelling house thereon in the town of Burke. On foreclosure by advertisement, certificate of sale was issued to appellant. Respondent brought this suit to enjoin issuance of sheriff's deed. The trial court rendered judgment for respondent, having found that Harter purchased the premises with the intent on the part of both husband and wife of occupying them as a homestead, and that, on April 13, 1922, when the mortgage was signed and delivered, the premises constituted the homestead of respondent and her husband, neither of whom owned any other real estate.

[1] Harter bought the premises in October, 1921. When bought, they were occupied by a tenant who rented from month to month. The tenant was told three or four times by Harter that he wanted possession; and the tenant promised to vacate the premises as soon as he could find a place to go. In April, 1922-whether before or after the 13th is not clear-he moved out. As soon as the house was vacant, Harter put in new floors, built a porch and another little room, redecorated the interior, and, with his family, moved in the latter part of May. There is no question that since moving in they have continued to use and occupy the premises as their homestead; but was it their homestead on April 13th?

[2][3] If it was their homestead on April 13th, the signature of respondent, who, until the following September, knew nothing of the mortgage which is the basis of appellant's claim to title, is necessary, under section 451, R. C. 1919, to give it validity. However, if it was respondent's homestead on April 13th, its homestead character was not by virtue of actual present physical occupation of the same, but depended largely upon the intent of the parties. That the homestead laws should be so construed as not to require actual present occupancy of the premises in order that they may become the homestead of the owner is well settled in this state. Kingman v. O'Callaghan, 4 S. D. 628, 638, 57 N. W. 912;Jensen v. Griffin, 32 S. D. 613, 144 N. W. 119,...