Jensen v. Griffin
| Decision Date | 05 December 1913 |
| Citation | 144 N.W. 119,32 S.D. 613 |
| Parties | JENSEN v. GRIFFIN et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Miner County; Alva E. Taylor, Judge.
Action by J. N. Jensen to enforce a mechanic's lien against Richard Griffin and wife and D. A. McCullough, in which Peter Olson and other lien claimants were joined as defendants. Judgment for plaintiff and the other lien claimants against Richard Griffin personally only, and plaintiff and certain claimants appeal. Reversed.
Null & Royhl, of Huron, for appellants.
C. C Caldwell, of Howard, for respondent D. A. McCullough.
Farmer & Blewitt, of Madison, for respondents R. and B. A. Griffin.
This action was brought for the purpose of foreclosing a mechanics' lien against certain real estate owned by defendants Griffin, being lots 1 and 2 of a certain city block. McCullough was made a party defendant owing to the fact that he was the holder of a mortgage against said real estate, which mortgage plaintiff sought to have decreed to be a lien subsequent and inferior to his; his rights depend upon those of the other two respondents and no separate mention of same will be made herein. The word "respondents," when used in this decision, will be understood to refer to the Griffins only, unless otherwise noted. The other defendants were joined owing to the fact that they also were mechanics' lien claimants, claiming liens on the same property, and they have become appellants herein. The trial court found that respondents were husband and wife; that, for several years prior to the dates hereinafter mentioned, they had, with their minor children, occupied, as their homestead the premises in question; that the said lots are less than one acre in area and, with all the buildings and improvements thereon, do not exceed $5,000 in value; that prior to October, 1910, the improvements on said lots consisted of a small house built some 28 years prior thereto and not exceeding $200 in value, located on lot 2, a small barn on lot 1, moved thereon in October, 1910, but before the commencement of the building of the dwelling house hereinafter mentioned, and a well located on said lot 1; that said house, because of its age and condition, was not a fit dwelling house for respondents and their family; that the said house on lot 2 and barn and well on lot 1 had been used together by respondents as their homestead, and, for eight years prior to the filing of the mechanics' liens herein said premises had not been used by any other person or persons for any purpose other than as the homestead of respondents; that respondent Richard Griffin had, for several years preceding the year 1910, purchased lots in said city and erected dwelling houses thereon for rental and for the purpose of sale; that about October, 1910, said Richard Griffin began the erection of a dwelling house on lot 1 and, during the construction of the same, procured labor and material used in such construction, and which has not been paid for, from the several appellants in the amounts for which they claim mechanics' liens herein; that said Richard Griffin at that time held the legal title to said lots; that the contracts for materials, supplies, and labor used in the construction of said dwelling house were the sole and individual contracts of the respondent Richard Griffin with the said mechanics' lien claimants and were not the contracts of his wife, and that she is in no manner liable to said mechanics' lien claimants upon said contracts; that Mrs. Griffin was at the new house practically every day of its construction, knew where the materials were purchased, and dictated some changes in the plan of the house; that, at various times while the said dwelling house was in the course of construction, respondent Richard Griffin offered the same for sale, the last time being when the house was near completion; that mechanics' liens were in due form filed by the several claimants; that, when the respondent Richard Griffin began the erection of said dwelling house, he was without sufficient means to pay for the labor and material to be used in the construction thereof and had made no arrangements for the funds for such purpose; that the respondents continued to reside in the house upon lot 2 until the spring of 1911 when they moved into the house on lot 1, beginning to move their furniture therein prior to the filing of the liens herein and moving therein with the intention of occupying such house as a domicile; that about May 1, 1911, being immediately after the completion of said new house on lot 1, the respondents vacated the house on lot 2 and took up their permanent dwelling place in the new house and have ever since continued to reside therein; that thereafter the house on lot 2 was occupied by a tenant for some five weeks but has since remained unoccupied. The above are the only findings material to a proper consideration of this appeal. From the above facts the court found and decreed that the several claimants were entitled to personal judgments against Richard Griffin but that they were not entitled to mechanics' liens against said new dwelling and the lot upon which it is situate because the said dwelling and lot was the homestead of the respondents. Were the above findings sufficient to support the said decree; there being no finding that respondents, at the time of the purchase of the building material, intended to use the new dwelling as their home?
Respondent urges that: The assignments last referred to are clearly not subject to the objection raised.
In making each of the first five assignments the appellant referred by number to the "conclusion" excepted to and followed such reference with a purported copy of such conclusion. It appears that, through some one's oversight, instead of copying the proper "conclusion" there was copied, as a part of each assignment, the same numbered "finding." This is too apparent to be misleading, and respondent should not be heard to complain thereof.
It seems to be conceded by both parties that the creation or existence of a homestead depends largely upon the intent of the parties. This is certainly true in those jurisdictions where, as in this state, the statute is so liberally construed as not to require actual present occupancy of the premises in order that they may become the homestead of the owner. Kingman v. O'Callaghan, 4 S. D. 628, 57 N.W. 912; Cameron v. Gebhard, 85 Tex. 610, 22 S.W. 1033, 34 Am. St. Rep. 832; Wolf v. Butler, 8 Tex. Civ. App. 468, 28 S.W. 51; Foley v. Holtkamp, 28 Tex. Civ. App. 123, 66 S.W. 891; Davis v. Kelly, 62 Neb. 642, 87 N.W. 347. Respondents in their brief say, "If the new house is constructed with the intent of using it as a second dwelling upon the property, then we agree with appellants' counsel that both houses cannot be homestead property;" but they insist that no question of intent is before us because: "This [intent] was a question for the trial court and it has been decided by the trial court in favor of the respondents." Herein respondents are in error; as before noted an examination of the findings of the trial court reveals the fact that said court wholly failed to find the owners' intent when building the new dwelling. There is one fact found from which, if it were not for other facts found, an intent to abandon the old building for dwelling purposes might possibly be inferred, namely, the fact that the old house was unfit for a home; but there is no finding that the owners thought it unfit, and there are findings that they continued to live there until they moved into the new house and they rented the old house for others to live in. These facts certainly indicate an intent to use both buildings for dwellings, at least for a time; and, when we consider the further finding that Griffin was engaged in the business of building houses to sell and tried to sell the new house, there can certainly, from all the facts found, be no inference that respondents built this dwelling intending to use it as their home, without which intent the building could not become a homestead prior to actual occupancy.
If respondents' rights depend upon the total abandonment of the old building for dwelling purposes, such abandonment, if it ever occurred, took place long after appellants' liens had attached, and no abandonment after that time could be of any effect as against such liens; if their rights depend upon their abandonment of the old building as their dwelling place, even then such abandonment did not occur until long after appellants had furnished the material and done the work that gave them liens upon the new building, which liens could not be affected by any abandonment occurring thereafter.
But respondents urge that, even if there was no abandonment of the old house as a dwelling house and there were therefore two dwelling houses on their property, they yet, under section 3222, Pol. Code, had a right to and did select the new house as their homestead. Section 3222 reads as follows "The homestead must embrace the house used as a home by the owner thereof, and if he or she has two or more houses thus used at different times and places, such owner may select which he or she will retain as a homestead." Conceding that respondents did have the right to and did select the new house as their dwelling, yet the findings fail to advise us as to when they made this...
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