Kern v. Field

• Decision Date: 24 May 1897
• Docket Number: Nos. 10,300 - (62).,s. 10,300 - (62).
• Citation: 68 Minn. 317
• Parties: KATE C. KERN v. JAMES S. FIELD.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 317

68 Minn. 317

KATE C. KERN v. JAMES S. FIELD.¹

Nos. 10,300 - (62).

Supreme Court of Minnesota.

May 24, 1897.

Appeal by defendant from an order of the district court for Kandiyohi county, Powers, J., denying a new trial. Affirmed.

D. W. Bruckart, for appellant.

G. E. Qvale, for respondent.

CANTY, J.

1. In 1891 the wife of defendant entered into an executory contract for the purchase of a certain hotel property situate at Willmar, in this state. She entered into possession of the property, conducted an hotel business thereon, and she and defendant resided on the premises, and the same was their homestead, until 1894, when she received notice from the grantee of the vendor declaring the executory contract forfeited by reason of default in performance on her part. Within a few days thereafter she made to said grantee a written instrument purporting to surrender the premises to him, but it was not signed by her husband. She then left this state, went to North Dakota, and about four months thereafter commenced in that state an action of divorce against defendant, the papers therein being served on him in this state. In less than three months thereafter a judgment of divorce was entered therein, he having failed to appear or defend.

Immediately after her departure from this state said grantee made to her sister, the plaintiff in this action, a new contract for the sale of the property to plaintiff, and she immediately took possession of the hotel, and has ever since managed the business of the same. Defendant occupied a room in the hotel at the time, and thereafter for about five months boarded with plaintiff. He surrendered this room to her, and took from her another. He failed to pay his board bill, was and still is insolvent, and refused to leave the premises, claiming the same as his homestead. When ejected from one room, he took possession of another, occupied any room he saw fit, keeping out the guest assigned to such room, was guilty of disorderly conduct, and advised and induced guests to go to the rival hotel. He persisted in this course of conduct, though he was repeatedly ordered by plaintiff to keep off the premises. After the entry of the decree of divorce above mentioned, this action was commenced to enjoin and restrain him from interfering with her said hotel business, or her possession of the premises. On the trial before the court without a jury, the court found for plaintiff. From an order denying a new trial, defendant appeals.

Conceding, for the purposes of the argument, that, as defendant contends, the defaults aforesaid were waived by the vendor, and that the contract of sale to Mrs. Field was not forfeited by these defaults, or surrendered by said written instrument signed by her alone, but was still in force when this action was commenced, still, if the judgment of divorce is valid, it terminated defendant's homestead right in the premises. He had ceased to be her husband, and had, therefore, ceased to have any homestead right in her...