Syllabus
by the Court.
1. The
provisions of our statute are to be liberally construed with
a view to effect its objects and to promote justice. Comp
Laws, § 4763.
2. To
use a house as a home is to act with regard to it in that
manner; and when the head of a family, owning no other
residence, purchases the site of an intended home, and begins
the erection of a dwelling house thereon, with the intent by
so doing to establish a place of abode for himself and
family, which intention is followed by such occupancy as soon
thereafter as the house, under the circumstances, can be
completed, he is so acting, and the requirements of our
statute have been answered, and the property is impressed
with the homestead character before such house is completed
and actually occupied by the family of the owner.
3. A
decision rendered by a trial court should not be disturbed on
appeal on the ground of the improper admission or rejection
of evidence, where it appears that no substantial wrong or
miscarriage of justice has been thereby occasioned; and when
a cause in equity has been tried to such court, and findings
of fact have been made that are by competent evidence
substantially sustained, and such findings justify the
conclusions of law and the decision rendered thereon, this
court will presume that improper testimony admitted on the
trial was disregarded, and the admission thereof was error
without prejudice.
Appeal
from circuit court, Lawrence county; Charles M. Thomas
Judge.
Action
by Charles H. Kingman against James O'Callaghan and
others for the foreclosure of a mortgage, and for other
relief. From the judgment rendered, plaintiff appeals.
Affirmed.
Wilson & McLaughlin and Edwin Van Cise, for appellant. McLaughlin & McLaughlin, for respondents.
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
diligence 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 homestead, 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...
