Higgins v. Higgins

• Decision Date: 18 November 1932
• Docket Number: 7294
• Citation: 60 S.D. 576,245 N.W. 397
• Parties: EDWARD HIGGINS, Respondent, v. MARY HIGGINS, Appellant.
• Court: South Dakota Supreme Court

60 S.D. 576

245 N.W. 397

EDWARD HIGGINS, Respondent,

v.

MARY HIGGINS, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Roy E. Dougherty, Judge #7294—Affirmed. Danforth & Davenport, Sioux Falls, SD Attorneys for Appellant. Conway, Feyder & Conway, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Nov 18, 1932

ROBERTS, Judge.

This action was commenced by the plaintiff for the partition of real property situate in the City of Sioux Falls. The defendant and her husband, Francis Higgins, residents of Rock Rapids, Iowa, purchased the property in question in March, 1920, moved to Sioux Falls, and thereafter for several years occupied the dwelling upon the premises. The defendant has to the time of the commencement of this action continued to reside therein. Both parties are named as grantees in the warranty deed to the premises and are described therein as husband and wife. The husband re-established his residence in Rock Rapids, Iowa, where he instituted an action for divorce on the ground of cruel and inhuman treatment. The defendant answered, and, after trial of the issues, the district court of Lyon County, Iowa, entered judgment for the plaintiff, which is in part as follows: “It is hereby adjudged and decreed that the allegations of the plaintiff’s petition as to the cruel and inhuman treatment by the Defendant such as to endanger the life of the Plaintiff, has been sustained, and that the allegations of the Cross-Petition of the defendant have not been sustained, and said Cross-Petition is hereby dismissed, and it is found, adjudged and decreed that the plaintiff be and is hereby divorced from the defendant upon his petition and that the plaintiff have judgment against the defendant for alimony in the sum of $8,624.15, with interest thereon at 6% fromthe 9th day of November, 1926.”

Pending the appeal from the divorce judgment, the husband died, and Edward Higgins, son of the parties and plaintiff in the instant case, having been appointed administrator of the estate of his father, was substituted as party plaintiff. The appellate court found that the divorce decree was fully sustained by the evidence, and that the alimony awarded involved only personal property to which plaintiff was entitled as a matter of right. The opinion is reported in 204 Iowa, 1312, 216 N.W. 693.

The will of Francis Higgins was admitted to probate in the district court of Lyon County, Iowa, and subsequently probate proceedings were had in the county court of Minnehaha County, S.D., wherein a final decree was entered decreeing a one-half interest in the property in dispute to Edward Higgins.

The trial court entered findings for the plaintiff, and the judgment decrees a partition and sale of the premises. Defendant appeals to this court.

The defendant contends that the trial court failed to consider and determine her equitable interests in the property and to adjudicate the homestead rights of the defendant. The basis for such contention is that, where the court of another state grants a decree of divorce to the spouse residing in that state, the courts of this state may thereafter in a suit for partition or in any other appropriate action preserve a homestead right or make a division of the property in this state between the parties as it would do in a divorce action, and that the plaintiff as the alleged successor in interest of his father would acquire an interest in the property, if any, subject to equities vested in the defendant. A careful examination of the record convinces us that the property was purchased from the joint accumulations of the parties, and that the findings of the court to the effect that each of the parties had an undivided one-half interest in the property are fully sustained. It must also be conceded from the record that the defendant acquired and continued to have a homestead interest in the property, to the time of the entry of the divorce decree.

The question for our determination is as to the effect of the decree entered by the district court of the State of Iowa. Since real estate is governed by the law of its situs, a decree of a court which attempts to transfer or directly affect title beyond its territorial limits, and not by compelling the holder of the title to convey,...