Appeal from Circuit Court, Lawrence County, S.D.
FULLER, J.
The complaint in this case, after stating a cause of action for the foreclosure of a certain real estate mortgage dated July 21, 1889, executed and delivered by the defendants James O'Callaghan and Mary O’Callaghan to the plaintiff and appellant, Charles H. Kingman, to secure a promissory note for $4,627, of even date therewith, and concerning the foreclosure of which no defense is made, contains the following allegations:
“(8) And the plaintiff further states that, as a further security for the indebtedness above described, the defendant James O’Callaghan, being the owner of a certain contract for the sale of certain real property made to him by defendant Elijah P. Fowler, duly assigned the same to this plaintiff on July 8, 1889, together with all his right, title, interest, claim and demand of, in, and to the real property therein described, with the appurtenances thereon, situated in the town of Whitewood, Lawrence county, South Dakota, and described as follows: ‘Lots 4 and 5, in block G, in Oak Park addition to the town of Whitewood;’ and authorized the plaintiff to receive a deed therefor.
(9) And the plaintiff further states that said assignment of contract of sale was duly acknowledged and certified, so as to entitle it to be recorded, and that the same was afterwards duly recorded in the office of the register of deeds in and for the county of Lawrence, South Dakota, on the 17th day of January, 1890, in Book 67, page 591. (10) And plaintiff further states that before bringing this action he offered to pay to said Elijah P. Fowler the balance due on said contract of sale, made by him to said O’Callaghan, and assigned to plaintiff as aforesaid, to the end that he might get the deed thereto; but that said Fowler declined plaintiff’s offer, and that the plaintiff is now ready and willing, and hereby does offer, to pay such balance for such deed.”
Plaintiff also demands that the defendant Elijah P. Fowler be required to show to the court the amount remaining due on his contract of sale to said O’Callaghan, and that plaintiff be allowed to pay the same, and receive a deed for the premises described in said contract, and that the same be foreclosed as a mortgage. To that portion of the complaint quoted the defendants James O’Callaghan, Mary O’Callaghan, and Elijah P. Fowler, answered as follows:
“The defendants James O’Callaghan, Mary O’Callaghan, and Elijah P. Fowler, answering the complaint of the above named plaintiff for themselves, and for themselves only, aver as a defense to the eighth, ninth, and tenth paragraphs in plaintiff’s complaint that on the 17th day of September, A. D. 1887, the defendant James O’Callaghan purchased from the defendant Elijah P. Fowler, for the sum of one hundred and fifty dollars, lots four and five, (4 and 5,) in block nine, Oak Park addition to the town of Whitewood, Lawrence county, in the then Territory of Dakota, now the State of South Dakota, for the purpose of making a homestead of the same, and proceeded with reasonable dilligence to erect a dwelling house thereon, to be occupied by himself and family; that at that time, and ever since, he was, and now is, a married man, and the head of a family, and the defendant Mary O’Callaghan is his wife; that, so soon as his dwelling house was completed on said lots, he moved into it with his family, and has occupied the same ever since as his and their homstead, and he has no other. That at the time of making said purchase of said lots from the defendant Elijah P. Fowler a contract was entered into between him and the said defendant James O’Callaghan for the sale and purchase of said lots, and the sum of thirty-seven dollars paid on the purchase price, and the remainder of the purchase money was to be paid in two installments in one and two years thereafter, which have been paid by defendant James O’Callaghan to the defendant Elijah P. Fowler, and the former is now entitled to a deed therefor. That said defendant James O’Callaghan had expended on said lots, in erecting his dwelling house and other improvements thereon, not less than twenty-five hundred dollars. That at the time of the alleged assignment of said contract to the plaintiff, he had full knowledge that the defendant Mary O’Callaghan was the wife of the defendant James O’Callaghan; and that there was indorsed upon said contract a notice that, if the party making the assignment was married, both husband and wife should sign and acknowledge the same before it would be approved. That said Mary O’Callaghan did not sign or acknowledge the same, or have any knowledge of the alleged assignment until the bringing of this action; and that the said Elijah P. Fowler has not approved of or recognized the alleged assignment of said contract to the plaintiff, but has received all the purchase price of said lots from the defendant James O’Callaghan according to the terms of said contract, and is ready to execute and deliver to him a deed therefor. Defendants further aver as a defense to the cause of action stated in Paragraphs eight, nine, and ten in plaintiff’s complaint that the alleged assignment of the contract mentioned was and is null and void, because the same is not signed and acknowledged by the defendant Mary O’Callaghan, wife of the defendant James O’Callaghan; and because the premises mentioned in the complaint were and are the homestead of said defendants James and Mary O’Callaghan, and they are the equitable owners of the same, and entitled to receive the legal title therefor from the defendant Elijah P. Fowler; that the claim of the plaintiff, Kingman, is a cloud upon the said title, and ought to be removed. Wherefore defendants pray that it may be adjudged and decreed (1) that the assignment of the contract mentioned in Paragraphs eight and nine in plaintiff’s complaint was and is null and void; (2) that said plaintiff has no estate, right, title, or interest in or to lots four and five, block nine, Oak Park addition to the town of Whitewood, Lawrence county, State of South Dakota, and that the same was the homestead of the defendants James and Mary O’Callaghan when the alleged assignment was made; (3) that defendants are entitled to recover their costs in this behalf expended; (4) and for such other and further relief as to the court shall seem meet.”
Upon the issue thus raised the case was tried to the court without a jury. The court found, in effect, as matters of fact, that at the time of making the contract for the lots involved in this suit the defendant James O’Callaghan was a married man, living with his wife, the defendant Mary O’Callaghan; that he stated at the time of making the purchase that his object and intention was to build a house thereon, and make a home for himself and family; that in the summer of 1889 he did cause to be erected on said lots a dwelling house of the value of about $2,000, and has ever since occupied the same with his wife as a homestead; that at the time of making the assignment of the contract to ...
