Karcher v. Gans

• Decision Date: 11 July 1900
• Citation: 13 S.D. 383,83 N.W. 431
• Parties: SARAH KARCHER, Plaintiff and respondent, v. HATTIE E. GANS, Defendant and appellant.
• Court: South Dakota Supreme Court

13 S.D. 383

83 N.W. 431

SARAH KARCHER, Plaintiff and respondent,

v.

HATTIE E. GANS, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Hughes County, SD Hon. Loring E. Gaffy, Judge Affirmed Albert Gunderson, T. W. La Fleiche, W. A. Lynch, T. H. Null Attorneys for appellant. Horner & Stewart Attorneys for respondent. Opinion filed July 11, 1900

CORSON, J.

This is an action in forcible entry and detainer, originally commenced in a justice’s court, but, upon an answer being filed claiming title to the property by the defendant, it was certified to the circuit court, where the case was tried by the court with a jury, and a verdict directed in favor of the plaintiff. From the judgment. and order denying a new trial, defendant has appealed to this court.

The facts may be briefly stated as follows: In February, 1895, Frank A. Keys and the defendant, Hattie E. Gans, who was then his wife, executed to the plaintiff a promissory note for the sum of $800, due and payable on the 12th day f January, 1896, and secured the same by a mortgage on the property occupied by himself and the defendant, situated in the city of Pierre. In December, 1895, the plaintiff foreclosed said mortgage by advertisement, under the power of sale contained in the mortgage. Before the expiration of the fist year of redemption, the defendant paid the interest as provided by statute, and thereupon the period of redemption was extended for the second year. On the 1st day of February, 1899, no redemption having been made of said premises, a deed was issued by the sheriff of Hughes county to the plaintiff and respondent herein for the mortgaged premises. On the 10th day of February, 1899, a notice to quit and vacate the premises was served upon the appellant, and, she failing to vacate the same, this action was commenced in the justice’s court, as before stated. Numerous errors are assigned, but we shall only discuss such of them as are pressed in appellant’s brief.

The appellant contends, first, that a mortgage given by a husband upon a homestead, and signed by the wife, is void and cannot be foreclosed in this state, for the reason that tie foreclosure proceedings amount to a forced sale of the homestead, and are therefore within the provisions of the constitution of the state prohibiting a forced sale of the homestead. In support of this contention the learned counsel for the appellant cite a number of decisions from different courts which have held such a sale void, but upon a review of these decisions it will be found that they were made under constitutional or statutory provisions entirely different from those of this state. Section 4 of Article 21 of the constitution of this state declares:

“The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws; exempting from forced sale a homestead, the value of which shall be limited and defined by law, to all heads of families, and a reasonable amount of personal property, the kind and value of which to be fixed by general laws.”

It will be noticed that the exemption of a homestead is from a “forced sale,” and the same term is used in the statute which was enacted to carry. the provisions of the constitution into effect. The theory of counsel for the defense seems to be that a sale made of mortgaged homestead property by advertisement or on execution is a forced sale, within the meaning of this section, but this theory cannot be sustained. Where parties have executed a mortgage in which they have authorized the mortgagee, in case of default in payment, either to sell the property by advertisement, under the statute, or to foreclose and sell the same under a judgment of foreclosure, they have consented to such sale; and the sale is not, therefore, a forced sale, within the meaning of the constitution and law exempting homesteads. Whether the sale is voluntary or forced depends, not upon the mode of its execution, but upon the presence or absence of the consent of the owner. If the framers of the constitution had intended that the homestead should be exempt from any sale other than an absolute conveyance, they certainly would have prohibited in express terms the giving of a mortgage or otherwise in lumbering a homestead, as is done in the constitutions or statutes of several of the states. Thompson, in his work on Homesteads, states the general rule as follows:

“The general rule is that statutes creating a homestead exemption do not operate to restrain in any particular the voluntary alienation or mortgage of the homestead, unless it is so expressed. A mere exemption from forced sale does not have this effect.”

Thomp. Homest. & Ex. § 453; Wap. Homest. p. 714, states the rule thus:

“Manifestly, if the homestead has been duly mortgaged by man and wife, they can have nothing to say against its foreclosure on the ground of any remaining homestead rights. All these rights went when they made the mortgage, and the mortgagors are presumed to have had the quid pro quo.”

The State of West Virginia has a constitutional provision quite similar to our own. It provides as follows: “Any husband or parent residing in this state or the infant children of deceased pare is may hold a homestead to the value of $1,000 and personal property to the value of $200, exempt from forced sale, subject to such regulations as may be prescribed by law.” Const. W. Va. Art. 6 § 48. The supreme court of that state, in Moran v. Clark, 30 WV 358, after a full review of the authorities, held: “The sale of a homestead under a deed of trust or under a decree of foreclosure of mortgage thereon is not a forced sale, within the meaning of the constitution, which exempts a homestead from forced sale,” In Peterson v. Hornblower, 33 Cal. 266, the supreme court of that state gave a construction to the term “forced sale,” as used in their constitution, and that learned court says:

“The constitution (Article 11, § 15) provides that ‘the legislature shall protect by law, from forced sale, a certain portion of the homestead and other property of all heads of families.’ The several homestead acts were enacted to give effect to this provision. A ‘forced sale’ is not synonymous with a ‘sale on execution,’ etc. The latter may be, and often is, voluntary in every respect. When the owner consents to a sale under the execution or other legal process, the sale is not forced, but is as voluntary, within the full import of the term, as it is when he directly effects the sale and executes the conveyance. Its quality, as being voluntary or forced, depends, not upon the mode of its execution, but upon the presence or absence of the consent of the owner. If those terms were synonymous, or were so understood by the legislature, the provisions would have been that the homestead shall not be subject to sale under execution or other legal process. As the clause now stands, and with the interpretation contended for, no meaning or effect can be given to the word ‘forced.’ … We remarked that where the owner of the homestead consents to a sale under execution or other legal process, it is not a forced sale. It makes no difference, in respect to its being forced or voluntary, whether he consents directly to the sale, or does the same indirectly, by consenting to or doing those acts or things that necessarily or usually eventuate in a sale. A foreclosure sale, whether under the power of sale contained in the mortgage, or in pursuance of a decree, is not a forced sale, within the meaning of the constitution or the statute.”

15 Am. & Eng. Enc. Law (2 Ed.) p. 664; Jones v. Yoakam, 5 Neb. 265; Gee v. Moore, 14 Cal. 472; Rector v. Rotton, 3 Neb. 171; Patterson v. Taylor, 15 Fla. 336; Smith v. Mallone, 10 SC 39; Dawson v. Hayden, 67 Ill. 52; Dye v. Mann, 10 Mich. 291; Chamberlain v. Lyell, 3 Mich. 448; Stewart v. Mackey, 16 Tex. 56; Smith v. Marc, 26 150; Godfrey v. Thornton, 46 Wis. 677, 1 N.W. 362. It is quite clear, both on principle and authority, that the contention of the appellant that, as the property was a homestead, the mortgage was void, is without merit.

Appellant calls our attention to the provisions of Chapters 76 and 77 of the Laws of 1891, and contends that these provisions have materially changed the law of this state; but, in the view we take of them, they do not affect the question now under consideration.

It is further contended on the part of the appellant that the court erred in sustaining the objections of respondent to a number of questions propounded to the appellant when a witness on her own behalf, which were, in effect, as to whether or not she had acknowledged the mortgage in controversy before one T. H. Conniff, as notary public. The mortgage itself contains the certificate of T. H. Conniff, under his seal as notary public, certifying that on the 12th day of January, 1895, the said appellant, under her then name of Hattie E. Keys, appeared before him and duly acknowledged the mortgage. The testimony...